Exhibit 10.17
Brittonfield II and III
East Syracuse, NY (HRPT-372)
PURCHASE
AND SALE AGREEMENT
by
and between
HUB
PROPERTIES TRUST,
as
Seller,
and
SENIOR
HOUSING PROPERTIES TRUST,
as
Purchaser
May 5, 2008
TABLE
OF CONTENTS
|
SECTION 1.
|
DEFINITIONS
|
1
|
|
1.1.
|
“Agreement”
|
1
|
|
1.2.
|
“Business
Day”
|
1
|
|
1.3.
|
“Closing”
|
1
|
|
1.4.
|
“Closing
Date”
|
1
|
|
1.5.
|
“Existing
Survey”
|
1
|
|
1.6.
|
“Existing Title
Policy”
|
2
|
|
1.7.
|
“Improvements”
|
2
|
|
1.8.
|
“Land”
|
2
|
|
1.9.
|
“Leases”
|
2
|
|
1.10.
|
“Loan”
|
2
|
|
1.11.
|
“Mortgage Loan
Documents”
|
2
|
|
1.12.
|
“Other
Property”
|
2
|
|
1.13.
|
“Permitted
Exceptions”
|
2
|
|
1.14.
|
“Property”
|
3
|
|
1.15.
|
“Purchase
Price”
|
3
|
|
1.16.
|
“Purchaser”
|
3
|
|
1.17.
|
“Rent
Roll”
|
3
|
|
1.18.
|
“Seller”
|
3
|
|
1.19.
|
“Title
Company”
|
3
|
|
1.20.
|
“Update”
|
3
|
|
|
|
|
|
SECTION 2.
|
PURCHASE AND SALE;
CLOSING.
|
3
|
|
2.1.
|
Purchase and
Sale.
|
3
|
|
2.2.
|
Closing.
|
3
|
|
2.3.
|
Purchase
Price.
|
4
|
|
|
|
|
|
SECTION 3.
|
TITLE, DILIGENCE
MATERIALS, ETC.
|
4
|
|
3.1.
|
Title.
|
4
|
|
3.2.
|
No Other
Diligence.
|
5
|
|
|
|
|
|
SECTION 4.
|
CONDITIONS TO THE
PURCHASER’S OBLIGATION TO CLOSE.
|
6
|
|
4.1.
|
Closing
Documents.
|
6
|
|
4.2.
|
Loan Consent and
Estoppel.
|
7
|
|
4.3.
|
Title
Policy.
|
7
|
|
4.4.
|
Environmental Reliance
Letters.
|
7
|
|
4.5.
|
Condition of
Property.
|
7
|
|
4.6.
|
Other
Conditions.
|
7
|
|
|
|
|
|
SECTION 5.
|
CONDITIONS TO
SELLER’S OBLIGATION TO CLOSE.
|
7
|
|
5.1.
|
Purchase
Price.
|
8
|
|
5.2.
|
Closing
Documents.
|
8
|
|
5.3.
|
Loan Consent and
Estoppel.
|
8
|
|
5.4.
|
Other
Conditions.
|
8
|
|
|
|
|
|
SECTION 6.
|
REPRESENTATIONS AND
WARRANTIES OF SELLER.
|
8
|
|
6.1.
|
Status and Authority of
the Seller, Etc.
|
8
|
|
6.2.
|
Action of the Seller,
Etc.
|
8
|
|
6.3.
|
No Violations of
Agreements.
|
9
|
|
6.4.
|
Litigation.
|
9
|
i
|
6.5.
|
Existing Leases,
Etc.
|
9
|
|
6.6.
|
Agreements,
Etc.
|
10
|
|
6.7.
|
Not a Foreign
Person.
|
10
|
|
|
|
|
|
SECTION 7.
|
REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
|
12
|
|
7.1.
|
Status and Authority of
the Purchaser.
|
12
|
|
7.2.
|
Action of the
Purchaser.
|
12
|
|
7.3.
|
No Violations of
Agreements.
|
12
|
|
7.4.
|
Litigation.
|
12
|
|
|
|
|
|
SECTION 8.
|
COVENANTS OF THE
SELLER.
|
13
|
|
8.1.
|
Approval of
Agreements.
|
13
|
|
8.2.
|
Operation of
Property.
|
13
|
|
8.3.
|
Compliance with Laws,
Etc.
|
13
|
|
8.4.
|
Compliance with
Agreements.
|
13
|
|
8.5.
|
Notice of Material
Changes or Untrue Representations.
|
13
|
|
8.6.
|
Insurance.
|
13
|
|
8.7.
|
Cooperation for Loan
Assumption.
|
13
|
|
|
|
|
|
SECTION 9.
|
APPORTIONMENTS.
|
14
|
|
9.1.
|
Real Property
Apportionments.
|
14
|
|
9.2.
|
Closing
Costs.
|
16
|
|
|
|
|
|
SECTION 10.
|
DAMAGE TO OR
CONDEMNATION OF PROPERTY.
|
17
|
|
10.1.
|
Casualty.
|
17
|
|
10.2.
|
Condemnation.
|
17
|
|
10.3.
|
Survival.
|
18
|
|
|
|
|
|
SECTION 11.
|
DEFAULT.
|
18
|
|
11.1.
|
Default by the
Seller.
|
18
|
|
11.2.
|
Default by the
Purchaser.
|
18
|
|
|
|
|
|
SECTION 12.
|
MISCELLANEOUS.
|
18
|
|
12.1.
|
Allocation of
Liability.
|
18
|
|
12.2.
|
Brokers.
|
19
|
|
12.3.
|
Publicity.
|
19
|
|
12.4.
|
Notices.
|
19
|
|
12.5.
|
Waivers,
Etc.
|
21
|
|
12.6.
|
Assignment; Successors
and Assigns.
|
21
|
|
12.7.
|
Severability.
|
21
|
|
12.8.
|
Counterparts,
Etc.
|
22
|
|
12.9.
|
Performance on Business
Days.
|
22
|
|
12.10.
|
Attorneys’
Fees.
|
22
|
|
12.11.
|
Section and Other
Headings.
|
22
|
|
12.12.
|
Time of
Essence.
|
22
|
|
12.13.
|
Governing
Law.
|
23
|
|
12.14.
|
Arbitration.
|
23
|
|
12.15.
|
Like Kind
Exchange.
|
24
|
|
12.16.
|
Recording.
|
24
|
|
12.17.
|
Non-liability of
Trustees of Seller.
|
24
|
ii
|
12.18.
|
Non-liability of
Trustees of Purchaser.
|
25
|
|
12.19.
|
Waiver and Further
Assurances.
|
25
|
iii
PURCHASE
AND SALE AGREEMENT
THIS PURCHASE AND SALE
AGREEMENT is made as of May 5, 2008, by and between
HUB PROPERTIES TRUST, a Maryland real estate investment
trust (the “ Seller ”), and SENIOR HOUSING
PROPERTIES TRUST , a Maryland real estate investment trust (the
“ Purchaser ”).
WITNESSETH
:
WHEREAS, the Seller
is the owner of the Property (this and other capitalized terms used
and not otherwise defined herein shall have the meanings given such
terms in Section 1 ); and
WHEREAS, the Seller
wishes to sell to the Purchaser, and the Purchaser desires to
purchase from the Seller, the Property, subject to and upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE , in
consideration of the mutual covenants herein contained and other
good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the Seller and the
Purchaser hereby agree as follows:
SECTION 1.
DEFINITIONS.
Capitalized terms
used in this Agreement shall have the meanings set forth below or
in the section of this Agreement referred to below:
1.1.
“ Agreement
” shall mean this Purchase and Sale Agreement, together
with any exhibits and schedules attached hereto, as it and they may
be amended from time to time as herein provided.
1.2.
“ Business Day
” shall mean any day other than a Saturday, Sunday or
any other day on which banking institutions in The Commonwealth of
Massachusetts are authorized by law or executive action to
close.
1.3.
“ Closing
” shall have the meaning given such term in
Section 2.2 .
1.4.
“ Closing Date
” shall have the meaning given such term in
Section 2.2 .
1.5.
“ Existing Survey ” shall
mean the existing ALTA survey of the Property.
1.6.
“ Existing Title
Policy ” shall mean, the existing title
insurance policy for the Property.
1.7.
“ Improvements
” shall mean, the Seller’s entire right,
title and interest in and to the existing office buildings,
fixtures and other structures and improvements situated on, or
affixed to, the Land.
1.8.
“ Land ”
shall mean, the Seller’s entire right, title and interest in
and to (a) the parcel(s) of land described in Schedule
A hereto, together with (b) all easements, rights of way,
privileges, licenses and appurtenances which the Seller may own
with respect thereto.
1.9.
“ Leases
” shall mean the leases identified in the Rent Roll and
any other leases hereafter entered into in accordance with the
terms of this Agreement.
1.10.
“ Loan ”
shall mean, collectively (i) a mortgage loan in the original
principal amount of $2,500,000, made by Sun Life Assurance Company
of Canada (U.S.), with respect to the Property, and (ii) a
mortgage loan in the original principal amount of $5,000,000, made
by Sun Life Assurance Company of Canada (U.S.), made by Union
Capital Investments, LLC, with respect to the Property.
1.11.
“ Mortgage Loan
Documents ” shall mean, with respect to the
Loan, collectively, the promissory note(s), mortgage and security
agreements, assignments of leases and rents, environmental
indemnities and other documents and instruments executed and
delivered in connection therewith.
1.12.
“ Other Property
” shall mean the Seller’s entire right,
title and interest in and to (a) all fixtures, machinery,
systems, equipment and items of personal property owned by the
Seller and attached or appurtenant to, located on and used in
connection with the ownership, use, operation or maintenance of the
Land or Improvements, if any, and (b) all intangible property
owned by the Seller arising from or used in connection with the
ownership, use, operation or maintenance of the Land or
Improvements, if any.
1.13.
“ Permitted
Exceptions ” shall mean, collectively,
(a) liens for taxes, assessments and governmental charges not
yet due and payable or due and payable but not yet delinquent;
(b) the Leases; (c) the exceptions to title set forth in
the Existing Title Policy; (d) all matters shown on the
Existing Survey, and (e) such other nonmonetary encumbrances
with respect
2
to the
Property as may be shown on the Update which are not objected to by
the Purchaser (or which are objected to, and subsequently waived,
by the Purchaser) in accordance with Section 3.1
.
1.14.
“ Property
” shall mean, collectively, all of the Land, the
Improvements and the Other Property.
1.15.
“ Purchase Price
” shall mean Twenty Million Three Hundred Three
Thousand Six Hundred Twenty-One Dollars ($20,303,621).
1.16.
“ Purchaser
” shall have the meaning given such term in the
preambles to this Agreement, together with any permitted successors
and assigns.
1.17.
“ Rent Roll
” shall mean Schedule B to this
Agreement.
1.18.
“ Seller
” shall have the meaning given such term in the
preambles to this Agreement, together with any permitted successors
and assigns.
1.19.
“ Title Company
” shall mean Lawyers Title Insurance
Corporation.
1.20.
“ Update ”
shall have the meaning given such term in
Section 3.1 .
SECTION 2
.
PURCHASE AND SALE;
CLOSING.
2.1.
Purchase and Sale .
In consideration of the payment of the Purchase Price by the
Purchaser to the Seller and for other good and valuable
consideration, the Seller hereby agrees to sell to the Purchaser,
and the Purchaser hereby agrees to purchase from the Seller, the
Property for the Purchase Price, subject to and in accordance with
the terms and conditions of this Agreement.
2.2.
Closing . The
purchase and sale of the Property shall be consummated at a closing
(the “ Closing ”) to be held at the offices of
Sullivan & Worcester LLP, One Post Office Square, Boston,
Massachusetts, or at such other location as the Seller and the
Purchaser may agree, at 10:00 a.m., local time, on
November 27, 2008, as the same may be accelerated pursuant to
this Section 2.2 (the “ Closing Date
”).
3
Notwithstanding
the foregoing, either party may accelerate the Closing Date by
giving not less than ten (10) Business Days prior written
notice (an “ Acceleration Notice ”) to the
other, in which event the Closing Date shall be the date set forth
in such Acceleration Notice unless the party receiving the
Acceleration Notice gives written notice objecting to the
accelerated date set forth in the Acceleration Notice (a “
Rejection Notice ”) to the other within five
(5) Business Days after its receipt of the Acceleration
Notice, in which event, the Closing Date shall not be accelerated
but shall occur as set forth in the preceding paragraph;
provided , however , that the Seller shall have the
right to give a Rejection Notice only if the acceleration of the
Closing Date will adversely effect the Seller’s ability to
conclude a like kind exchange pursuant to
Section 12.15. , and the Purchaser shall have the right
to give a Rejection Notice only if the Purchaser determines, in its
reasonable discretion, that the Purchaser does not, or will not,
have adequate funds to close on the accelerated Closing
Date.
2.3.
Purchase Price
.
(a)
At Closing, the Purchaser shall pay the Purchase Price to the
Seller, subject to the following adjustments:
(i)
There shall be added to, or deducted from, the Purchase Price such
amounts as may be required by Article 9 ; and
(ii)
There shall be deducted from the Purchase Price the outstanding
principal balance of the Loan.
(b)
At Closing, the Purchaser shall assume all of the obligations with
respect to the Loan and Mortgage Loan Documents, including, but not
limited to, the full repayment of the outstanding principal balance
of the Loan.
(c)
The Purchase Price, as adjusted as provided herein, shall be
payable by wire transfer of immediately available funds on the
Closing Date to an account or accounts to be designated by the
Seller.
SECTION 3.
TITLE, DILIGENCE MATERIALS,
ETC .
3.1.
Title . Prior to the
execution of this Agreement, the Seller has delivered the Existing
Title Policy and the Existing Survey to the Purchaser.
4
Within ten
(10) days after the execution hereof, the Purchaser shall
order an update to the Existing Title Policy (an “
Update ”) from the Title Company. The Purchaser
shall deliver to the Seller a copy of the Update promptly upon
receipt thereof. Promptly after receipt of the Update, but,
in any event, prior to the Closing Date, the Purchaser shall give
the Seller written notice of any title exceptions (other than
Permitted Exceptions) set forth on the Update as to which the
Purchaser objects. The Seller shall have the right, but not
the obligation, to attempt to remove, satisfy or otherwise cure any
exceptions to title to which the Purchaser so objects. If,
for any reason, in its sole discretion, the Seller is unable or
unwilling to take such actions as may be required to cause such
exceptions to be removed from the Update, the Seller shall give the
Purchaser notice thereof; it being understood and agreed that the
failure of the Seller to give prompt notice of objection shall be
deemed an election by the Seller not to remedy such matters.
If the Seller shall be unable or unwilling to remove any title
defects to which the Purchaser has so objected, the Purchaser may
elect (i) to terminate this Agreement or (ii) to
consummate the transactions contemplated hereby, notwithstanding
such title defect, without any abatement or reduction in the
Purchase Price on account thereof (whereupon such objected to
exceptions or matters shall be deemed to be Permitted
Exceptions). The Purchaser shall make any such election by
written notice to the Seller given on or prior to the fifth
(5 th ) Business Day after the Seller’s notice of
its unwillingness or inability to cure (or deemed election not to
cure) such defect and time shall be of the essence with respect to
the giving of such notice. Failure of the Purchaser to give
such notice shall be deemed an election by the Purchaser to proceed
in accordance with clause (ii) above.
3.2.
No Other Diligence .
The Purchaser acknowledges that, except as provided in
Section 3.1 , (i) the Purchaser has had the
opportunity to fully investigate and inspect the physical and
environmental condition of the Property, and to review and analyze
all title examinations, surveys, environmental assessment reports,
building evaluations, financial data and other investigations and
materials pertaining to the Property which the Purchaser deems
necessary to determine the feasibility of the Property and its
decision to acquire the Property, (ii) the Purchaser shall not
be conducting any further title examinations, surveys,
environmental assessments, building evaluations, financial analyses
or other investigations with respect to the Property, and
(iii) the Purchaser shall not have any right to terminate this
Agreement as a result of any title
5
examinations,
surveys, environmental assessments, building valuations, financial
analyses or other investigations with respect to the
Property.
SECTION 4.
CONDITIONS TO THE PURCHASER’S OBLIGATION TO CLOSE
.
The obligation of
the Purchaser to acquire the Property shall be subject to the
satisfaction of the following conditions precedent on and as of the
Closing Date:
4.1.
Closing Documents .
The Seller shall have delivered, or cause to have been delivered,
to the Purchaser the following:
(a)
A good and sufficient deed in the form attached as Schedule
C hereto, with respect to the Property, in proper statutory
form for recording, duly executed and acknowledged by the Seller,
conveying title to the Property, free from all liens and
encumbrances other than the Permitted Exceptions;
(b)
An assignment by the Seller and an assumption by the Purchaser, in
form and substance reasonably satisfactory to the Seller and the
Purchaser, duly executed and acknowledged by the Seller and the
Purchaser, of all of the Seller’s right, title and interest
in, to and under the Leases and all of the Seller’s right,
title and interest, if any, in, to and under all transferable
licenses, contracts, permits and agreements affecting the
Property;
(c)
A bill of sale by the Seller, without warranty of any kind, in form
and substance reasonably satisfactory to the Seller and the
Purchaser, with respect to any personal property owned by the
Seller, situated at the Property and used exclusively by the Seller
in connection with the Property (it being understood and agreed
that no portion of the Purchase Price is allocated to personal
property);
(d)
To the extent the same are in the Seller’s possession,
original, fully executed copies of all material documents and
agreements, plans and specifications and contracts, licenses and
permits pertaining to the Property;
(e)
To the extent the same are in the Seller’s possession, duly
executed original copies of the Leases;
(f)
A closing statement showing the Purchase Price, apportionments and
fees, and costs and expenses paid in connection with the Closing;
and
6
(g)
Such other conveyance documents, certificates, deeds and other
instruments as the Purchaser, the Seller or the Title Company may
reasonably require and as are customary in like transactions in
sales of property in similar transactions.
4.2.
Loan Consent
and Estoppel .
The Purchaser shall have obtained one or more loan
consent(s) and estoppel certificate(s), in form and substance
reasonably satisfactory to the Purchaser and the Seller (and
specifically including, without limitation, releases of any
guarantor or indemnitor of the Seller of any obligation with
respect to the Loan arising from and after the Closing Date and, in
connection therewith, providing satisfactory substitute guarantors
and indemnitors), dated within thirty (30) days prior to the
Closing Date, with respect to the Loan.
4.3.
Title Policy . The
Title Company shall be prepared to issue, upon payment of the title
premium at its regular rates, a title policy in the amount of the
Purchase Price, insuring title to the Property is vested in the
Purchaser or its designee or assignee, subject only to the
Permitted Exceptions, with such endorsements as shall be reasonably
required by the Purchaser.
4.4.
Environmental Reliance Letters
. The Purchaser shall have received a reliance letter, authorizing the Purchaser
and its designees and assignees to rely on the most recent
environmental assessment report prepared for the Property, in form
and substance reasonably acceptable to t he Purchaser.
4.5.
Condition of Property
. The Property shall be in substantially the same
physical condition as on the date of this Agreement, ordinary wear
and tear and, subject to Section 10.1 , casualty
excepted.
4.6.
Other Conditions .
All representations and warranties of the Seller herein shall be
true, correct and complete in all material respects on and as of
the Closing Date and the Seller shall have performed in all
material respects all covenants and obligations required to be
performed by the Seller on or before the Closing Date.
SECTION 5.
CONDITIONS TO
SELLER’S OBLIGATION TO CLOSE .
The obligation of
the Seller to convey the Property to the Purchaser is subject to
the satisfaction of the following conditions precedent on and as of
the Closing Date:
7
5.1.
Purchase Price . The
Purchaser shall deliver to the Seller the Purchase Price payable
hereunder, subject to the adjustments set forth in
Section 2.3 , together with any closing costs to be
paid by the Purchaser under Section 9.2 .
5.2.
Closing Documents .
The Purchaser shall have delivered to the Seller duly executed and
acknowledged counterparts of the documents described in
Section 4.1 , where applicable.
5.3.
Loan Consent
and Estoppel .
The Purchaser shall have obtained one or more loan
consent(s) and estoppel certificate(s), in form and substance
reasonably satisfactory to the Purchaser and the Seller (and
specifically including, without limitation, releases of any
guarantor or indemnitor of the Seller of any obligation with
respect to the Loan arising from and after the Closing Date and, in
connection therewith, providing satisfactory substitute guarantors
and indemnitors), dated within thirty (30) days prior to the
Closing Date, with respect to the Loan.
5.4.
Other Conditions .
All representations and warranties of the Purchaser herein shall be
true, correct and complete in all material respects on and as of
the Closing Date and the Purchaser shall have performed in all
material respects all covenants and obligations required to be
performed by the Purchaser on or before the Closing
Date.
SECTION 6.
REPRESENTATIONS
AND WARRANTIES OF SELLER .
To induce the
Purchaser to enter into this Agreement, the Seller represents and
warrants to the Purchaser as follows:
6.1.
Status and Authority of the Seller,
Etc. The Seller is duly organized, validly existing
and in good standing under the laws of its state of organization or
formation, and has all requisite power and authority under its
charter documents to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated
hereby.
6.2.
Action of the Seller, Etc.
The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and upon the
execution and delivery of any document to be delivered by the
Seller on or prior to the Closing Date, this Agreement and such
document shall constitute the valid and binding obligation and
agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as enforceability may be limited
by
8
bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of
creditors.
6.3.
No Violations of Agreements
. Neither the execution, delivery or performance of this
Agreement by the Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon the Property pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness
or any other agreement or instrument by which the Seller is
bound.
6.4.
Litigation . To the
Seller’s actual knowledge, it has not received written notice
that any investigation, action or proceeding is pending or
threatened, which (i) questions the validity of this Agreement
or any action taken or to be taken pursuant hereto, or
(ii) involves condemnation or eminent domain proceedings
against the Property or any portion thereof.
6.5.
Existing Leases, Etc.
Subject to Section 8.1 , other than the
Leases listed in the Rent Roll, the Seller has not entered into a
contract or agreement with respect to the occupancy of the Property
that will be binding on the Purchaser after the Closing. To
the Seller’s actual knowledge: (a) the copies of the
Leases heretofore delivered by the Seller to the Purchaser are
true, correct and complete copies thereof; and (b) such Leases
have not been amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between the Seller
and the tenants thereunder. Except as otherwise set forth in
the Rent Roll or the Leases: (i) to the Seller’ actual
knowledge, each of its Leases is in full force and effect on the
terms set forth therein; (ii) to the Seller’s actual
knowledge, there are no uncured defaults or circumstances which
with the giving of notice, the passage of time or both would
constitute a default thereunder which would have a material adverse
effect on the business or operations of the Property; (iii) to
the Seller’s actual knowledge, each of its tenants is legally
required to pay all sums and perform all material obligations set
forth therein without any ongoing concessions, abatements, offsets,
defenses or other basis for relief or adjustment; (iv) to the
Seller’s actual knowledge, none of its tenants has asserted
in writing or has any defense to, offsets or claims against, rent
payable by it or the performance of its other obligations under its
Lease which would have a material adverse effect on the on-going
business or operations of the Property; (v) the Seller has no
outstanding
9
obligation to
provide any of its tenants with an allowance to perform, or to
perform at its own expense, any tenant improvements; (vi) none
of its tenants has prepaid any rent or other charges relating to
the post-Closing period; (vii) to the Seller’s actual
knowledge, none of its tenants has filed a petition in bankruptcy
or for the approval of a plan of reorganization or management under
the Federal Bankruptcy Code or under any other similar state law,
or made an admission in writing as to the relief therein provided,
or otherwise become the subject of any proceeding under any federal
or state bankruptcy or insolvency law, or has admitted in writing
its inability to pay its debts as they become due or made an
assignment for the benefit of creditors, or has petitioned for the
appointment of or has had appointed a receiver, trustee or
custodian for any of its property, in any case that would have a
material adverse effect on the business or operations of the
Property; (viii) to the Seller’s actual knowledge, none
of its tenants has requested in writing a modification of its
Lease, or a release of its obligations under its Lease in any
material respect or has given written notice terminating its Lease,
or has been released of its obligations thereunder in any material
respect prior to the normal expiration of the term thereof, in any
case that would have a material adverse effect on the on-going
business or operations of the Property; (ix) to the
Seller’s actual knowledge, except as set forth in the Leases,
no guarantor has been released or discha
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