Operations Pending Closing. Seller, at its expense, shall use reasonable efforts to operate the Property until the Closing Date or until the termination of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part of the 180-page offering memorandum prepared by CBRE.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Investors Real Estate Trust)
Operations Pending Closing. SellerFrom and after the Effective Date hereof, at its expense, shall use reasonable efforts Seller covenants and agrees that:
a. Seller will continue to operate the Property until in the Closing Date same manner as it has been operating the Property during the twelve (12) months immediately preceding the Effective Date.
b. Seller shall not enter into any new lease or until commitment to lease, or any extension or amendment of any existing leases (including the termination of this AgreementExisting Lease), whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each respect to any portion of the leases of space then Property without Buyer’s prior written consent, which may be granted or withheld in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date’s sole discretion. To the extent any new lease or commitment to lease is consented to by Buyer, each new lease or commitment to lease with respect to any portion of the Property and each extension or amendment of any existing leases for an additional period of time shall include a demolition clause that requires vacation of the premises by the tenant within no more than nine (9) months after written notice from the landlord thereunder. All leases referenced in Exhibit E and any new lease or amendment entered into from and after the date hereof conforming to the terms of this Section 6(b) or with Buyer’s prior written consent shall be deemed included within the term “leases” as used herein and the tenants under any such commissionsnew leases and/or amendments shall be deemed included within the term “tenants” as used herein. Seller shall comply with the terms and conditions of all leases in effect at the Property.
c. Seller will not further encumber the Property, tenant improvement costsgrant any easements or rights of way with respect to the Property or in any way affect the title to the Property, and shall not engage in any activity or effect any transaction with respect to the Property, including but not limited to the disposal of any items of personal property or fixtures which are attached to the realty and are part of the Property, which is outside the normal and ordinary course of business of the Property without the Buyer’s prior written consent which shall not be unreasonably withheld, conditioned or delayed.
d. Seller shall promptly furnish to Buyer copies of any and all notices that it receives from federal, state or local governmental authorities having jurisdiction over the Property, any Board of Fire Underwriters and from any other body having jurisdiction with respect to the use and occupancy or physical condition of the Property.
e. Seller shall maintain in force a policy or policies of fire and extended coverage, hazard insurance and a liability insurance policy with respect to the Property in an amount not less than is presently in force unless the requirements of the Existing Lender permit otherwise.
f. Seller shall comply with the terms and conditions of all contracts and agreements pertaining to the operation, management, leasing, and maintenance of the Property to which Seller is a party. Without the prior written consent of Buyer in each case, the Seller shall not (i) enter into any new contracts concerning the operation, management, leasing or maintenance of the Property or services thereto which are not cancelable without premium or penalty on thirty (30) days’ notice or (ii) make or contract for any maintenance item or capital improvement costs repair exceeding a cost of $2,500.00 (a “Maintenance/Capital Repair Contract”), unless the same is completed and paid for in full before or provisions of free rent are at Closing; provided that, in the event that Seller enters into any such Maintenance/Capital Repair Contract with the intention that the same be completed and paid by Seller prior to Closing, Buyer will reimburse Seller for in full before or at Closing, but only up for reasons outside of Seller’s control, Seller is unable to so complete and pay for the same in full before or at Closing, such circumstance shall not constitute a default by Seller hereunder so long as the full amount then payable by Seller under such Maintenance/Capital Repair Contract is deposited into escrow with the Title Company at closing pursuant to an escrow agreement reasonably acceptable to Buyer and Seller and Seller thereafter diligently and in good faith pursues the completion of all maintenance and capital repair work contemplated by such Maintenance/Capital Repair Contract.
g. Seller shall not take any action or fail to take any action required to be taken, which would result in any of the representations, warranties and covenants of Seller set forth in this Amended and Restated Contract not being and remaining true in all material respects through Closing.
h. With respect to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer andExisting Financing, to the extent such are payable after the until Closing, Seller shall credit Buyer at (1) make the Closing but only up to payments required by the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any terms of the Leases by reason of a tenant default thereunderExisting Financing Documents, (2) not approved by Buyer in writing within 5 business days after Buyer's receipt make any voluntary principal prepayments of the New Lease or Modification or notice Existing Financing Note (i.e., no principal payments greater than those mandatory principal payments presently required by the terms of the proposed termination shall be conclusively considered Existing Financing Note), (3) not join in or consent to have been approved by Buyer. If prior to the expiration any modifications of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts Existing Financing Documents without Buyer’s prior written consent, provided such new or modified Service Contracts can be and (and are4) terminated on or before the Closing Date. Without limiting the foregoing, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of keep the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part Financing out of the 180-page offering memorandum prepared by CBREdefault.
Appears in 1 contract
Operations Pending Closing. Seller, at its expense, shall use reasonable efforts (1) Seller will continue to operate the Property until in the Closing Date or until the termination normal course of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease business up to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To Seller shall maintain the extent Property in substantially the same condition as existed as of the Effective Date, reasonable wear and tear and damage by casualty and condemnation excepted, without waste, and shall conduct all reasonable repairs and maintenance of the Property with the frequency and quality that such repairs and maintenance were conducted prior to the Effective Date. Seller shall maintain all insurance that existed as of the Effective Date. Seller shall be entitled to terminate all Contracts as of the Closing Date unless Purchaser delivers written notice to Seller before the expiration of the Inspection Period describing which Contracts Purchaser desires to assume, subject to the terms of the particular Contract regarding assignability. Nothing contained herein shall prevent Seller from acting to prevent loss of life, personal injury or property damage in emergency situations or prevent Seller from performing any act with respect to the Property which may be required by any Lease, applicable law, rule or government regulations.
(2) During the Inspection Period, Seller must give Purchaser notice of its intent to enter into any new Lease or to modify any existing Lease at least forty-eight (48) hours before Seller executes the same. Seller agrees to give Purchaser copies of such new Leases or modifications of existing Leases within three (3) business days after execution by Seller and the tenant. Purchaser acknowledges that Purchaser will not have the right to approve or disapprove of any new Lease or modification to any existing Lease prior to the end of the Inspection Period. After the end of the Inspection Period, and assuming that the Agreement is in full force and effect, then Seller must obtain from Purchaser its prior written approval of any new Lease or material modification of any existing Lease, which approval will not be unreasonably withheld or delayed. Purchaser shall be deemed to have disapproved such new Lease or material modification of the existing Lease if it does not give its written consent to such new lease or modification within five (5) days after Seller sends such new Lease or modification to Purchaser for Purchaser's approval. If Seller enters into any new lease or materially modifies any existing Lease after the Effective Date, Seller will receive on the closing statement a credit for any leasing commissions, tenant improvement costs, capital improvement tenant finish plan costs, space planning costs, or architectural costs or provisions of free rent are paid by Seller prior with respect to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If lease prior to the expiration Closing. If Seller enters into any new Lease or modifies any existing Lease after the Effective Date and this transaction closes, Purchaser will be responsible for all leasing commissions, tenant improvement costs, tenant finish plan costs, space planning costs, and architectural costs, for the new or modified lease which are due after the Closing and shall indemnify and hold Seller harmless from and against all such costs, which indemnity shall survive Closing.
(3) Seller shall deliver to Purchaser on or before the Closing Date the tenant estoppel certificates substantially in the form of Exhibit G attached hereto from tenants occupying eighty percent (80%) of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of leased space at the Property which must include the Leases with those tenants listed on Exhibit H attached hereto and incorporated herein by reason reference (the "Required Tenants"). In the event Seller does not deliver the requisite number of a estoppel letters, the Seller, at Seller's option, may sign an affidavit affirming the same information as contained in the tenant default thereunder, and if Seller nevertheless enters into estoppel certificate for such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior space equal to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of difference between (i) eighty percent (80%) of the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or leased space and (ii) the expiration amount of leased space occupied by tenants who have delivered estoppel letters. Notwithstanding the Inspection Periodforegoing, to elect in writing to terminate this transaction Seller may not deliver an affidavit for the Required Tenants. To the extent that Seller delivers an affidavit rather than an estoppel letter and receive a refund of after Closing obtains the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentenceestoppel letter, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (exchange the estoppel letter for the affidavit and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller affidavit shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any null and void and of no further force and effect upon delivery of the Existing Leases which is applicable appropriate estoppel letters. In the event Seller does not deliver the requisite number of estoppel letters or does not provide the requisite affidavits then notwithstanding any provision to the period following contrary, this shall not be deemed to be a default by Seller and Purchaser's only remedy shall be to terminate this Agreement and in that event the Closing Date (collectivelyDeposit shall be returned by Escrow Agent to Purchaser, all of Seller's Property Data and all other studies, leases, analysis, reports, plans, abstracts of title and surveys respecting the Property delivered by Seller or on behalf of Seller to Purchaser and all of Purchaser's Property Data shall be delivered by Purchaser to Seller; and, except as otherwise provided in the Inspection Indemnity, the "Existing Tenant Inducement Costs") (parties shall thereupon be relieved of any and Buyer shall be provided a credit at Closing on account thereof)all further responsibility hereunder and Seller and Purchaser shall, unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part upon return of the 180-page offering memorandum prepared Deposit by CBREEscrow Agent to Purchaser, execute and deliver to the other party a general release stating the same. This Article shall survive the Closing.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Dean Witter Realty Growth Properties L P)
Operations Pending Closing. Seller, at its expense, shall use reasonable efforts to operate the Property until the Closing Date or until the termination of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's ’s right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's ’s exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's ’s right to review in advance Seller's ’s proposed termination of any Lease to remedy a default thereunder. Except only as set forth on Exhibit 12, Buyer's ’s approval of each New Lease or Modification shall also constitute Buyer's ’s agreement to pay its prorata share of all reasonable leasing commissions and chargescommissions, if any, related to the New Lease or Modification, and its prorata share of the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and its prorata share of the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's ’s prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata prorate share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's ’s receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Lease, Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated Except only as set forth on or before the Closing Date. Without limiting the foregoingExhibit 12, Seller shall pay and be solely responsible for all outstanding leasing commissions, if any, related to the Existing Leases, and the cost of any tenant improvement/improvements and capital improvement costsimprovements to be constructed or installed for the tenant under any Existing Leases, as well as and the value of any "“free rent" ” periods under the Existing Leases, and to the extent any of the Existing Leases which is applicable foregoing have not be paid by Seller at or prior to the period following the Closing Date (collectivelyClosing, the "Existing Tenant Inducement Costs") (and Buyer shall be provided receive a credit at Closing on account thereof), unless against the Purchase Price for such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part of the 180-page offering memorandum prepared by CBREunpaid amounts.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Property (Investors Real Estate Trust)
Operations Pending Closing. Seller, at its expense, shall use reasonable efforts At all times prior to operate the Property until the Closing Date or until the sooner termination of this Agreement, whichever is earlierSeller agrees: (a) to maintain, manage and operate the Property free from waste and neglect, in accordance with Seller’s applicable law and consistent with its past management practices. For purposes of this Agreement: ; (ib) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting to maintain the Property as in its current condition and state of the Contract Daterepair (normal wear and tear and casualty loss excepted); (iic) the term “New Leases” shall mean any lease of space affecting to maintain its existing casualty and liability insurance on the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after insurance continues to be available at commercially reasonable premiums); and (d) to perform all of its material obligations under the Closing, Seller shall credit Buyer at Tenant Leases and the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or ModificationContracts. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, At all times after the expiration of the Inspection PeriodPeriod (or earlier waiver of the Inspection Contingency), BuyerSeller agrees (e) not to amend, in its reasonable discretion, timely rejects modify or disapproves any proposed New Lease terminate or Modification or any proposed permit the termination by Seller of any of the Tenant Leases (other than for expansions, renewals and other changes contemplated by reason a Tenant Lease existing on the Date of a tenant default thereunderthis Agreement) or the Contracts without the prior written consent of Buyer, Seller which shall not enter into such New Lease unreasonably be withheld or Modification delayed; (f) not to lease or carry out such termination except rent any portion of the Property without the prior written consent of Buyer, which shall not unreasonably be withheld or delayed; or (g) not to issue a new Contract (other than a Contract in the event ordinary course of a default business and terminable on thirty (30) days or less notice by Buyer hereunderthe owner of the Property) without the prior written consent of Buyer, which shall not be unreasonably withheld or delayed. All amendments and modifications of the existing Tenant Leases, and all new leases and rental agreements, made by Seller shall have the right prior to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (Closing and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller permitted under this Agreement shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as considered part of the 180-page offering memorandum prepared "Tenant Leases." All amendments and modifications of the existing Contracts, and all new contracts concerning utilities, maintenance, services or operation of the Property, made by CBRESeller prior to Closing and permitted under this Agreement shall be considered part of the "Contracts."
Appears in 1 contract
Sources: Real Property Purchase and Sale Agreement (First Mutual Bancshares Inc)
Operations Pending Closing. SellerSellers, at its their expense, shall use reasonable efforts to operate the Property Properties until the Closing Date or until the termination of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) Sellers shall not, without the term “Existing Leases” shall mean each prior written consent of the leases of space then in effect Partnership, which consent shall not unreasonably be withheld, enter into or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean agree to enter into any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease agreement concerning occupancy or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller use of any of the Leases by reason of a tenant default thereunderProperties, not approved by Buyer in writing within 5 business days after Buyer's receipt other agreements concerning operation or ownership of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or ModificationProperties, or any proposed termination by Seller modification or amendment of any existing Lease, Service Contract or any other agreement relating to the Properties which would survive Closing; or institute any summary or other eviction proceeding or action against any Tenant or occupant of the Properties. In connection with leases or renewals of existing Leases executed by reason Sellers after the Contract Date, the Partnership shall be responsible for payment of only the unamortized portion (amortized without interest on a tenant default thereunderstraight line basis over the Lease term) of any Tenant finish allowance, commissions and concessions, and if Seller nevertheless enters into leasing costs including design costs granted under such New Leases and attributable to the portion of the Lease term after the Closing Date, provided the Partnership has approved in writing Sellers’ execution of any such Lease or Modification or terminates amendment and the amount of the costs to be incurred thereby. The portion of such Lease by reason of a tenant default (as Seller shall be free to do in its sole Tenant finish allowance and absolute discretion prior commissions attributable to the expiration of the Inspection Period), Buyer shall have the right, period on or prior to the later Closing Date shall be paid by Sellers. Sellers agree, through and including the Closing Date and at Sellers’ sole cost and expense, to:
(a) keep all existing Sellers’ insurance policies affecting the Properties or any portion thereof in full force and effect;
(b) use commercially reasonable efforts to occur keep in full force and effect and/or to renew all licenses and permits, if any, pertaining to Sellers’ ownership or operation of the Properties or any portion thereof; and
(ic) use commercially reasonable efforts to continue to provide all services currently provided by Sellers with respect to the date 3 business days after its receipt of Properties or any portion thereof, and to continue to operate, manage and maintain the Properties in substantially the same manner as Sellers currently operate, manage, repair, replace and maintain the Properties. Sellers agree to give the Partnership written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of citation or other notice which Sellers may receive, subsequent to the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right Contract Date and prior to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting , from any governmental authority and alleging any violation of any law, ordinance, code rule, regulation or order regulating the foregoingProperties or the use thereof and shall, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of the Existing Leases which is applicable prior to the period following the Closing Date (collectivelyand at its expense, cure the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless matter raised by such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part of the 180-page offering memorandum prepared by CBREnotice.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Investors Real Estate Trust)
Operations Pending Closing. SellerFrom and after the date hereof, at its expenseSeller shall continue to operate and maintain the Property between the date hereof and Settlement in the manner in which the same are currently being operated and maintained, but in no less than a commercially reasonable fashion, shall use maintain the Property in good condition and repair and will undertake reasonable commercial efforts to operate prevent any waste to the Property Property. From and after the date hereof until the Closing Date expiration of the Due Diligence Period, Seller shall advise and consult with Purchaser regarding any new lease, the modification or until amendment of any existing lease (including any extension thereof), or the termination of any existing lease, and shall provide Purchaser with complete copies of same, and Seller shall not apply any tenant’s Security Deposit held as of the date of this Agreement unless such tenant vacates or is no longer in possession of its premises as of Settlement. Seller acknowledges that Purchaser has advised it of that certain lease entered into for a portion of the Property to become effective at Closing, a copy of which is attached hereto as Exhibit P. From and after the Due Diligence Period and provided that Purchaser has not terminated this Agreement, whichever is earlierSeller agrees that it will not take any action which would in any way further encumber the Property, nor will it commence any action to dispossess or evict any tenant without prior consent of Purchaser or enter into any new leases or modifications of existing leases without the written consent of the Purchaser, or enter into any management or service contracts for the Property unless such contract(s) shall be fully cancelable or terminable prior to Settlement. Seller shall, from and after the date hereof perform and discharge all of its duties and obligations and shall otherwise comply with every covenant and agreement of the landlord or lessor under the leases. Furthermore, Seller shall, for the same period, use diligent and good faith efforts to cause the tenant under each lease to perform all of such tenant’s duties and obligations and otherwise to comply with each and even one of such tenant’s covenants and agreements under such lease and shall enforce the terms and provisions of each such lease. If there shall occur any material adverse change in the status of any lease prior to Settlement, Purchaser shall, in accordance addition to any other remedies it may be entitled to hereunder, have the right to terminate this Agreement and receive a complete refund of the deposits hereunder, together with Seller’s past practicesinterest accrued thereon. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease term “material adverse change” shall mean a change which reduces the revenue derived from a lease by five percent (5%) or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part of the 180-page offering memorandum prepared by CBREmore.
Appears in 1 contract
Sources: Agreement of Sale (Dover Downs Gaming & Entertainment Inc)
Operations Pending Closing. Seller, at its expense, shall use reasonable efforts to operate From and after the Property Effective Date and until Closing hereunder or the Closing Date or until the termination of date this Agreement is otherwise terminated as set forth in this Agreement, whichever is earlierSeller covenants and agrees that:
A. Seller shall promptly furnish to Purchaser, in accordance with within five (5) business days of Seller’s past practices. For purposes receipt thereof, copies of this Agreement: (i) any and all notices which it receives from federal, state or local governmental authorities having jurisdiction over the term “Existing Leases” shall mean each Property alleging any violation of applicable law or regulation with respect to the leases Property or providing notice of space then in effect or any proceedings affecting the Property including, without limitation, notices concerning zoning or the filing of a tax appeal.
B. Seller shall maintain in force the policies of fire and extended coverage and hazard insurance and liability insurance with respect to the Property that are in effect as of the Contract Effective Date; (ii) the term “New Leases” .
C. Seller shall mean any lease of space affecting perform all maintenance and repairs on the Property entered into after required by the Contract Leases to be performed by Seller, and generally shall operate, maintain and insure the Property in the same manner in which Seller is operating, maintaining and insuring the Property on the Effective Date in accordance with (but subject at all times to the terms obligations of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing landlord under the Leases and New Leases collectively. Except as specifically to perform its obligations set forth below therein). This obligation of Seller shall include, without limitation, the performance of all obligations, as owner of the Property, under the Leases, Service Contracts, and under any government approvals or licenses, any easements and other documents relating to the Property. Seller shall deliver the Property to Purchaser at Closing substantially in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”)the condition existing as of the Effective Date, subject to Buyer's right to review normal wear and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing tear and terms of any such exercise), damage and, as otherwise described in additionthis Agreement. Without the prior written consent of Purchaser in each case, Seller may enforce its remedies under any Lease in which the tenant is in defaultconsent shall not be unreasonably withheld, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease conditioned or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunderdelayed, Seller shall not enter into such New Lease any new contracts concerning the operation, management or Modification maintenance of the Property or carry out such termination services thereto.
D. Seller shall not knowingly commit any act, which would result in any of the warranties or representations contained in this Agreement not being materially true or correct as of the Closing.
E. Seller shall not make or permit to be made any material alterations, improvements, or additions to the Property (except when required by applicable law or by any Lease) without the prior written consent of the Purchaser (which consent will not be unreasonably withheld, conditioned, or delayed).
F. Seller shall not, without Purchaser’s prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed prior to the end of the Feasibility Period and after the end of the Feasibility Period will be granted in the event Purchaser’s sole discretion): (i) enter into any leases of all or any part of the Property, (ii) extend the term of, terminate or modify, any Leases of the Property with existing tenants, (iii) grant any consent to a default tenant under a Lease with respect to any action or matter requiring “landlord’s” consent under such Lease, or waive the performance by Buyer hereunderany tenant of any material obligation under a Lease, (iv) apply any security deposits, or (v) accept rent for more than thirty (30) days in advance. Seller shall have deliver to Purchaser, simultaneous with ▇▇▇▇▇▇’s request for ▇▇▇▇▇▇▇▇▇’s consent to a proposed lease, a full copy of the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consentproposed lease and all exhibits thereto, provided any financial statements on the proposed tenant collected by ▇▇▇▇▇▇, and such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting the foregoing, other information reasonably requested by Purchaser.
G. Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as promptly deliver to Purchaser a copy of any "free rent" written notice of default or exercising any option or requesting Seller to perform any work received by Seller under any of the Existing Leases which is applicable Leases.
H. Seller shall not permit any liens, easements, encumbrances or other clouds on the title to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall Property to be provided a credit at Closing on account thereof)created, unless such Existing Tenant Inducement Costs were specifically disclosed liens or encumbrances are paid off or otherwise satisfied at Closing.
I. Prior to Buyer in writing as part Closing, Seller shall terminate all Service Contracts, including all management and leasing agreements, other than those Service Contracts that Purchaser expressly elects to assume by written notice to Purchaser prior to the end of the 180-page offering memorandum prepared by CBREFeasibility Period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Broad Street Realty, Inc.)
Operations Pending Closing. SellerSeller hereby covenants and agrees that after the Contract Date, at its expense, shall use reasonable efforts to operate until the Property until earlier of the Closing Date or until the earlier termination of this Agreement, whichever is earlier, :
(a) Seller shall continue to maintain the Property in accordance with Seller’s past its customary business practices. For purposes .
(b) Seller shall continue to fulfill all of this Agreement: its obligations under the Leases.
(ic) Seller shall continue to otherwise manage and operate the Property in accordance with its customary business practices.
(d) Seller shall not, without the written consent of Buyer (which consent shall not be unreasonably withheld or delayed), enter into any new Lease (or renew any existing Lease) for a term “Existing Leases” exceeding 1 year or enter into any Lease in a form other than the standard lease form delivered to Buyer pursuant to Section 6.1.
(e) Seller shall mean each not sell, mortgage, pledge, hypothecate or otherwise transfer or dispose of all or any part of the leases Property or incur any liabilities other than in the ordinary course of space then in effect operating and managing the Property, except for such liabilities as will be discharged on or affecting the Property as of before Closing. After the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible not, without the written consent of Buyer (which consent shall not be unreasonably withheld or delayed), enter into any new Service Contracts unless such new Service Contract is on market-rate or better terms and can be terminated upon no more than 30 day’s notice without penalty. Notwithstanding Seller’s obligation set forth in Section 11(a), Seller has no obligation to provide make any repairs or replacements to the Property if the cumulative cost of all reasonably necessary repairs or replacements is reasonably estimated by Seller to exceed $50,000. If Seller declines to make any reasonably necessary repairs or replacements because the estimated cumulative cost of all repairs and replacements would exceed $50,000, then Buyer with may terminate this Agreement prior to Closing on written notice of the timing and terms of any such exercise)to Seller, and, in additionsuch event, Seller may enforce its remedies under any Lease in which the tenant is in defaultthis Agreement shall terminate, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ MoneyMoney shall be returned to Buyer, and neither party shall have any further obligation hereunder except as to covenants which are to survive termination. If Buyer does not elect to terminate the Seller’s obligation set forth in Section 11(a) shall expire upon Closing; if this transaction in accordance with the preceding sentencecloses, then Buyer is Seller’s obligation to maintain the Property shall be deemed to have approved the New Lease been satisfied or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, Seller shall not enter into such New Lease or Modification or carry out such termination except in the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as any "free rent" under any of the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part of the 180-page offering memorandum prepared by CBREwaived.
Appears in 1 contract
Sources: Sale and Purchase Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Operations Pending Closing. Seller, at its expense, shall use reasonable efforts to operate the Property until the Closing Date or until the termination of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each of the leases of space then in effect or affecting the Property as of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, however, Seller shall remain responsible to provide Buyer with written notice of the timing and terms of any such exercise), and, in addition, Seller may enforce its remedies under any Lease in which the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Period, Buyer, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior to the expiration of the Inspection Period), Buyer shall have the right, on or prior to the later to occur of (i) the date 3 business days after its receipt of written notice that Seller has entered into such transaction, or (ii) the expiration of the Inspection Period, to elect in writing to terminate this transaction and receive a refund of the E▇▇▇▇▇▇ Money. If Buyer does agrees, with respect to itself and the Subject Premises owned by such Seller, that between the date hereof and the Closing:
(a) Seller shall operate, manage and maintain the Subject Premises or cause same to be operated, managed and maintained in substantially the same general manner as it is being operated on the date hereof.
(b) Seller shall not, without ▇▇▇▇▇’s prior written consent amend, renew or extend any Lease in any material respect, unless required by law or the terms of the Lease.
(c) Seller shall not elect to terminate the transaction in accordance with the preceding sentence, then Buyer is deemed to have approved the New Lease or Modificationpermit occupancy of, or enter into any new lease termination. Iffor, after space which is presently vacant or which may hereafter become vacant (each, a “New Lease”), or any lease renewal (unless required by law or the expiration terms of the Inspection PeriodLease), without first obtaining Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, ’s prior written consent thereto.
(d) Seller shall not enter into such any service agreements (each, a “New Lease or Modification or carry out such termination except in Service Agreement”) which would be binding on Buyer after the event of a default by Buyer hereunder. Seller shall have the right to enter into new Service Contracts Closing or modify existing any Service Contracts Agreement without obtaining Buyer’s written consent, provided such new or modified Service Contracts can be . Not later than five (and are5) terminated on or before Business Days prior to the Closing Date. Without limiting , Buyer shall determine and advise Seller in writing as to which Service Agreements Buyer shall elect to have Seller terminate (such “Service Agreements” assumed by Buyer are referred to herein as collectively, the foregoing“Assumed Service Agreements”), whereupon Seller shall deliver notices of termination at Closing canceling such Service Agreements and Seller shall be solely responsible for all outstanding leasing commissionsany termination fees or penalties.
(e) Between the Effective Date and the Closing Date, tenant improvement/capital improvement costsSeller shall not, as well as without Buyer’s prior written consent, create, allow or permit any "free rent" under liens, easements, restrictions, covenants, or encumbrances on the Subject Premises.
(f) Between the Effective Date and the Closing Date, Seller shall not file any application for any change of the Existing Leases which present zoning classification of the Subject Premises.
(g) Between the Effective Date and the Closing Date, Seller shall perform no alterations or improvements in the condition of the Subject Premises except routine maintenance in the ordinary course of Seller’s business or as may be required by law or the Leases.
(h) Seller shall not solicit, market, negotiate, grant, or enter into any agreements of sale, options to purchase or rights of first refusal or first offer for all or any portion of the Subject Premises while this Agreement is applicable in effect.
(i) Seller shall allow Buyer or Buyer’s representatives reasonable access to the period following Subject Premises in accordance with the Closing Date (collectively, the "Existing Tenant Inducement Costs") (terms and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer in writing as part conditions of the 180-page offering memorandum prepared by CBRESection 16 below.
Appears in 1 contract
Sources: Stock Purchase Agreement (EnerSys)
Operations Pending Closing. SellerFrom and after the Effective Date and until Closing hereunder, at its expenseSeller covenants and agrees that:
A. Until Closing, shall use reasonable efforts to operate the Property until Seller will be solely responsible for the Closing Date or until the termination of this Agreement, whichever is earlier, in accordance with Seller’s past practices. For purposes of this Agreement: (i) the term “Existing Leases” shall mean each management of the leases of space then in effect or affecting Property. Upon the Property as expiration of the Contract Date; (ii) the term “New Leases” shall mean any lease of space affecting the Property entered into after the Contract Date in accordance with the terms of this Agreement; and (iii) the term “Lease” or “Leases” shall mean Existing Leases and New Leases collectively. Except as specifically set forth below in this paragraph, Seller may enter into New Leases and renewals, extensions, cancellations or other modifications to Leases (collectively, “Modifications”), subject to Buyer's right to review and approve each New Lease or Modification in advance (excepting modifications embodying solely a tenant's exercise of an existing right to renew, extend or cancel; provided, howeverFeasibility Period, Seller shall remain responsible to provide Buyer with written notice of the timing and terms not enter into any amendments or modifications of any such exercise), and, in additionService Contracts without notice to Purchaser, Seller may enforce its remedies under will manage the Residential Condominium, including the execution of any Lease in which new Residential Leases or extensions of any existing Residential Leases. Purchaser shall have the tenant is in default, subject to Buyer's right to review in advance Seller's proposed termination of reasonably approve any Lease to remedy a default thereunder. Buyer's approval of each New Lease or Modification shall also constitute Buyer's agreement to pay its prorata share of all reasonable leasing commissions and charges, if any, related to the New Lease or Modification, and the cost of any reasonable tenant improvements and capital improvements to be constructed or installed for the tenant under the New Lease or Modification, and the value of any reasonable “free rent” periods under the New Lease or Modification. Such prorata share shall be based on a fraction, the denominator of which shall be the number of days in the lease term of such Lease and the numerator of which shall be the number of days in such lease term excluding any days during the lease term that elapse before the Closing Date. To the extent any such commissions, tenant improvement costs, capital improvement costs or provisions of free rent are paid by Seller prior to Closing, Buyer will reimburse Seller at Closing, but only up to the Buyer's prorata share of such costs and amounts in connection with the New Lease or Modification approved by Buyer and, to the extent such are payable after the Closing, Seller shall credit Buyer at the Closing but only up to the Seller’s prorata share of such costs and amounts in connection with the New Lease or Modification. Any New Lease or Modification provided to Buyer for review, and any proposed termination by Seller of any of the Retail Leases by reason of a tenant default thereunder, not approved by Buyer in writing within 5 business days after Buyer's receipt of the New Lease or Modification or notice of the proposed termination shall be conclusively considered to have been approved by Buyer. If prior to the expiration of the Inspection Feasibility Period. After the expiration of the Feasibility Period, BuyerPurchaser shall have the right, for any reason, timely rejects or disapproves of any proposed New Lease or Modification, or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunder, and if Seller nevertheless enters into such New Lease or Modification or terminates such Lease by reason of a tenant default (as Seller shall be free to do in its sole and absolute discretion prior discretion, to approve any Retail Leases, including, without limitation, the expiration scope of the Inspection Period)landlord work, Buyer shall have the right, on or prior to amount of any tenant improvement allowances and leasing commissions associated with a new Retail Lease. Upon the later to occur of (i) the date 3 business days after its receipt expiration of written notice that Seller has entered into such transactionthe Feasibility Period, or and (ii) the expiration exhaustion of any funds provided by Seller’s lender which have been designated by an approved budget for the payment of leasing costs associated with Retail Leases, Purchaser will be responsible for the payment of any leasing costs associated with Retail Leases (including, landlord work, tenant improvement allowances, leasing commission, third party construction management fees, and legal leasing expenses). Seller will provide Purchaser with at least five (5) business days’ prior notice of the Inspection date Purchaser will take over responsibility of said leasing costs. Seller shall take reasonable measures to preserve and enforce all of its rights and remedies with respect to the Property, the Leases, the Service Contracts, and under any licenses, permits, warranties, guarantees and the like described in Section 1.B(iv)-(vii) of this Agreement. Seller shall keep Purchaser timely informed of the status of the Property prior to Closing. Upon Closing, Seller and Bridger Corp shall enter into an agreement, in form reasonably acceptable to Purchaser, pursuant to which Bridger Corp shall be responsible for the property management and leasing of the Residential Condominium (“Property Management Agreement”). The Property Management Agreement will be for a period of one year, shall provide for a management fee of 3% of the rental revenue generated from the Residential Condominium and shall otherwise be on standard market terms.
B. Seller shall promptly furnish to Purchaser, within five (5) business days of Seller’s receipt thereof, copies of any and all notices which it receives from federal, state or local governmental authorities having jurisdiction over the Property, any insurance company or board and from any other body having jurisdiction with respect to the use, occupancy and/or physical condition of the Property.
C. Seller shall perform all maintenance and repairs on the Property required by the Leases to be performed by Seller, and generally shall operate, maintain and insure the Property in the same manner in which Seller is operating, maintaining and insuring the Property on the Effective Date (but subject at all times to the obligations of the tenants under the Leases to perform its obligations set forth therein). This obligation of Seller shall include, without limitation, the performance of all obligations, as owner of the Property, under the Leases, Service Contracts, and under any government approvals or licenses, any easements and other documents relating to the Property. Seller shall deliver the Property to Purchaser at Closing substantially in the condition existing as of the last day of the Feasibility Period, subject to elect normal wear and tear and damage and, as otherwise described in writing this Agreement, subject to terminate this transaction and receive a refund change due to casualty or condemnation. Without the prior written consent of the E▇▇▇▇▇▇ Money. If Buyer does Purchaser in each case, which consent shall not elect to terminate the transaction in accordance with the preceding sentencebe unreasonably withheld, then Buyer is deemed to have approved the New Lease conditioned or Modification, or lease termination. If, after the expiration of the Inspection Period, Buyer, in its reasonable discretion, timely rejects or disapproves any proposed New Lease or Modification or any proposed termination by Seller of any of the Leases by reason of a tenant default thereunderdelayed, Seller shall not enter into such New Lease any new contracts concerning the operation, management or Modification maintenance of the Property or carry out such termination except in the event of a default by Buyer hereunder. services thereto.
D. Seller shall have the right to enter into new Service Contracts or modify existing Service Contracts without Buyer’s consent, provided such new or modified Service Contracts can be (and are) terminated on or before the Closing Date. Without limiting the foregoing, Seller shall be solely responsible for all outstanding leasing commissions, tenant improvement/capital improvement costs, as well as not knowingly commit any "free rent" under act which would result in any of the Existing Leases which is applicable to the period following the Closing Date (collectively, the "Existing Tenant Inducement Costs") (and Buyer shall be provided a credit at Closing on account thereof), unless such Existing Tenant Inducement Costs were specifically disclosed to Buyer warranties or representations contained in writing this Agreement not being materially true or correct as part of the 180-page offering memorandum prepared by CBREClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Broad Street Realty, Inc.)