Exhibit 10.1
[Multiple Properties - FHC]
PURCHASE AND SALE
AGREEMENT
by and among
HRPT
PROPERTIES TRUST, HUB PROPERTIES TRUST
AND MOB REALTY TRUST,
as Sellers,
and
SENIOR
HOUSING PROPERTIES TRUST,
as Purchaser
May 5,
2008
[Multiple Properties - FHC]
TABLE
OF CONTENTS
|
SECTION 1.
|
DEFINITIONS
|
1
|
|
1.1
|
“Agreement”
|
1
|
|
1.2
|
“Allocable Purchase
Price”
|
1
|
|
1.3
|
“Business Day”
|
2
|
|
1.4
|
“Closing”
|
2
|
|
1.5
|
“Closing Date”
|
2
|
|
1.6
|
“Existing Survey”
|
2
|
|
1.7
|
“Existing Title Policy”
|
2
|
|
1.8
|
“Ground Lease”
|
2
|
|
1.9
|
“HRPT”
|
2
|
|
1.10
|
“Hub”
|
2
|
|
1.11
|
“Improvements”
|
2
|
|
1.12
|
“Land”
|
3
|
|
1.13
|
“Leases”
|
3
|
|
1.14
|
“MOB”
|
3
|
|
1.15
|
“Other Property”
|
3
|
|
1.16
|
“Permitted Exceptions”
|
3
|
|
1.17
|
“Property”
|
3
|
|
1.18
|
“Properties”
|
3
|
|
1.19
|
“Purchase Price”
|
4
|
|
1.20
|
“Purchaser”
|
4
|
|
1.21
|
“Rent Roll”
|
4
|
|
1.22
|
“Seller” and
“Sellers”
|
4
|
|
1.23
|
“Title Company”
|
4
|
|
1.24
|
“Update” and
“Updates”
|
4
|
|
|
|
|
|
SECTION 2.
|
PURCHASE AND SALE;
CLOSING.
|
4
|
|
2.1
|
Purchase and Sale.
|
4
|
|
2.2
|
Closing.
|
4
|
|
2.3
|
Purchase Price.
|
5
|
|
|
|
|
|
SECTION 3.
|
TITLE, DILIGENCE
MATERIALS, ETC.
|
5
|
|
3.1
|
Title.
|
5
|
|
3.2
|
No
Other Diligence.
|
6
|
|
|
|
|
|
SECTION 4.
|
CONDITIONS TO THE
PURCHASER’S OBLIGATION TO CLOSE.
|
6
|
|
4.1
|
Closing Documents.
|
7
|
|
4.2
|
Ground Lease Consent and Estoppel.
|
8
|
|
4.3
|
Title Policy.
|
8
|
|
4.4
|
Environmental Reliance Letters.
|
8
|
|
4.5
|
Condition of Property.
|
8
|
|
4.6
|
Other Conditions.
|
8
|
|
|
|
|
|
SECTION 5.
|
CONDITIONS TO
SELLERS’ OBLIGATION TO CLOSE.
|
9
|
i
|
5.1
|
Purchase Price.
|
9
|
|
5.2
|
Closing Documents.
|
9
|
|
5.3
|
Ground Lease Consent and Estoppel.
|
9
|
|
5.4
|
Other Conditions.
|
9
|
|
|
|
|
|
SECTION 6.
|
REPRESENTATIONS AND
WARRANTIES OF SELLERS.
|
9
|
|
6.1
|
Status and Authority of the Seller,
Etc.
|
9
|
|
6.2
|
Action of the Seller, Etc.
|
10
|
|
6.3
|
No
Violations of Agreements.
|
10
|
|
6.4
|
Litigation.
|
10
|
|
6.5
|
Existing Leases, Etc.
|
10
|
|
6.6
|
Agreements, Etc.
|
11
|
|
6.7
|
Not
a Foreign Person.
|
12
|
|
|
|
|
|
SECTION 7.
|
REPRESENTATIONS AND
WARRANTIES OF PURCHASER.
|
13
|
|
7.1
|
Status and Authority of the
Purchaser.
|
13
|
|
7.2
|
Action of the Purchaser.
|
13
|
|
7.3
|
No
Violations of Agreements.
|
13
|
|
7.4
|
Litigation.
|
13
|
|
|
|
|
|
SECTION 8.
|
COVENANTS OF THE
SELLERS.
|
14
|
|
8.1
|
Approval of Agreements.
|
14
|
|
8.2
|
Operation of Property.
|
14
|
|
8.3
|
Compliance with Laws, Etc.
|
14
|
|
8.4
|
Compliance with Agreements.
|
14
|
|
8.5
|
Notice of Material Changes or Untrue
Representations.
|
14
|
|
8.6
|
Insurance.
|
15
|
|
|
|
|
|
SECTION 9.
|
APPORTIONMENTS.
|
15
|
|
9.1
|
Real Property Apportionments.
|
15
|
|
9.2
|
Closing Costs.
|
18
|
|
|
|
|
|
SECTION 10.
|
DAMAGE TO OR
CONDEMNATION OF PROPERTY.
|
18
|
|
10.1
|
Casualty.
|
18
|
|
10.2
|
Condemnation.
|
18
|
|
10.3
|
Survival.
|
19
|
|
|
|
|
|
SECTION 11.
|
DEFAULT.
|
19
|
|
11.1
|
Default by the Sellers.
|
19
|
|
11.2
|
Default by the Purchaser.
|
19
|
|
|
|
|
|
SECTION 12.
|
MISCELLANEOUS.
|
20
|
|
12.1
|
Allocation of Liability.
|
20
|
|
12.2
|
Brokers.
|
20
|
|
12.3
|
Publicity.
|
20
|
|
12.4
|
Notices.
|
20
|
ii
|
12.5
|
Waivers, Etc.
|
22
|
|
12.6
|
Assignment; Successors and Assigns.
|
22
|
|
12.7
|
Severability.
|
23
|
|
12.8
|
Counterparts, Etc.
|
23
|
|
12.9
|
Performance on Business Days.
|
23
|
|
12.10
|
Attorneys’ Fees.
|
23
|
|
12.11
|
Section and Other Headings.
|
23
|
|
12.12
|
Time of Essence.
|
24
|
|
12.13
|
Governing Law.
|
24
|
|
12.14
|
Arbitration.
|
24
|
|
12.15
|
Like Kind Exchange.
|
25
|
|
12.16
|
Recording.
|
25
|
|
12.17
|
Joint and Several Liability.
|
25
|
|
12.18
|
Non-liability of Trustees.
|
25
|
|
12.19
|
Non-liability of Trustees of
Purchaser.
|
26
|
|
12.20
|
Waiver and Further Assurances.
|
26
|
iii
[Multiple Properties - FHC]
PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE
AGREEMENT is made as of
May 5, 2008, by and among HRPT PROPERTIES TRUST , a
Maryland real estate investment trust (“ HRPT
”), HUB PROPERTIES TRUST , a Maryland real estate
investment trust (“ Hub ”), and MOB REALTY
TRUST , a Massachusetts nominee trust (“ MOB
”, and together with HRPT and Hub, each a “
Seller ” and collectively, “ Sellers
”), and SENIOR HOUSING PROPERTIES TRUST , a Maryland
real estate investment trust (the “ Purchaser
”).
WITNESSETH
:
WHEREAS,
the Sellers are the owners of the
Properties (this and other capitalized terms used and not otherwise
defined herein shall have the meanings given such terms in
Section 1 ); and
WHEREAS, the
Sellers wish to sell to the Purchaser, and the Purchaser desires to
purchase from the Sellers, the Properties, 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 Sellers 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
“ Allocable Purchase Price ”
shall mean, with respect to each Property, the amount set forth in
Schedule A opposite the name of such Property, it being
understood and agreed that the aggregate amount of the Allocable
Purchase Prices of the Properties shall be One Hundred Twelve
Million Nine Hundred Ten Thousand Eight Hundred and Twenty-Four
Dollars ($112,910,824).
1
1.3
“ 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.
1.4
“ Closing ” shall have the
meaning given such term in Section 2.2 .
1.5
“ Closing Date ” shall have
the meaning given such term in Section 2.2
.
1.6
“
Existing Survey ” shall mean, with respect to each Property, the
existing ALTA survey of such Property.
1.7
“ Existing Title
Policy ”
shall mean, with respect to each Property, the
existing title insurance policy for such Property.
1.8
“ Ground
Lease ”
shall mean that certain Ground Lease, dated as of
November 21, 1994, by and between Hubbard Health
Systems, Inc., as landlord, and Fallon Clinic, Inc., as
tenant, as modified by that certain Landlord Consent, dated as of
September 18, 1996, from Hubbard Health Systems, Inc., as
landlord, to Lakeside Realty Company, that certain Assignment of
Lease and Consent, dated as of September 30, 1996, by and
among Hubbard Health Systems, Inc., as landlord, Fallon
Clinic, Inc., as assignor, and Lakeside Realty Company, as
assignee, that certain Ground Lease Consent and Estoppel
Certificate, dated as of May 9, 1997, from Hubbard Health
Systems, Inc., as landlord, to MOB, and that certain
Assignment of Ground Lease, dated as of May 14, 1997, by and
between Lakeside Realty Company, as assignor, and MOB, as assignee,
with respect to the Property located at 340 Thompson Road, Webster,
Massachusetts.
1.9
“ HRPT ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.10
“ Hub ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.11
“ Improvements ”
shall mean, with respect to each Property, the applicable
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.
2
1.12
“ Land ” shall mean, with
respect to each Property, the applicable Seller’s entire
right, title and interest in and to (a) the parcel(s) of
land associated with such Property, which is more particularly
described in Schedule B-1 through B-21 hereto, together with
(b) all easements, rights of way, privileges, licenses and
appurtenances which such Seller may own with respect
thereto.
1.13
“ 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.
1.14
“ MOB ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.15
“ Other Property ”
shall mean, with respect to each Property, the applicable
Seller’s entire right, title and interest in and to
(a) all fixtures, machinery, systems, equipment and items of
personal property owned by such Seller and attached or appurtenant
to, located on and used in connection with the ownership, use,
operation or maintenance of the Land or Improvements relating to
such Property, if any, and (b) all intangible property owned
by such Seller arising from or used in connection with the
ownership, use, operation or maintenance of the Land or
Improvements relating to such Property, if any.
1.16
“ Permitted Exceptions ”
shall mean, with respect to each Property, 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 relating to such Property; (c) the
exceptions to title set forth in the Existing Title Policy for such
Property; (d) all matters shown on the Existing Survey for
such Property, and (e) such other nonmonetary encumbrances
with respect to such Property as may be shown on the Update for
such Property 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 .
1.17
“ Property
” shall mean, collectively, all of the Land,
the Improvements and the Other Property relating to a single
property identified on Schedule A .
1.18
“ Properties ” shall mean,
collectively, all of the Land, the Improvements and the Other
Property relating to the properties identified on Schedule A
, the legal descriptions of which are set forth in Schedules B-1
through B-21 .
3
1.19
“ Purchase Price ” shall mean
One Hundred Twelve Million Nine Hundred Ten Thousand Eight Hundred
and Twenty-Four Dollars ($112,910,824) (which is the sum of the
Allocable Purchase Prices).
1.20
“ Purchaser ” shall have the
meaning given such term in the preambles to this Agreement,
together with any permitted successors and assigns.
1.21
“ Rent Roll ” shall mean
Schedule C to this Agreement.
1.22
“ Seller ” and “ Sellers ” shall have the
meanings given such terms in the preambles to this Agreement,
together with any permitted successors and assigns.
1.23
“ Title Company ” shall mean
Lawyers Title Insurance Corporation.
1.24
“ Update
” and “ Updates
” shall have the meanings given such terms 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 Sellers and for other
good and valuable consideration, the Sellers hereby agree to sell
to the Purchaser, and the Purchaser hereby agrees to purchase from
the Sellers, the Properties 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
Properties 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
August 8, 2008, as the same may be accelerated pursuant to
this Section 2.2 (the “ Closing
Date ” ).
Notwithstanding
the foregoing, either the Purchaser or the Sellers 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,
4
the Closing Date shall
not be accelerated but shall occur as set forth in the preceding
paragraph; provided , however , that the Sellers
shall have the right to give a Rejection Notice only if the
acceleration of the Closing Date will adversely effect the
Sellers’ 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 Sellers, subject to the following
adjustments:
(i)
There shall be deducted from the
Purchase Price the Allocable Purchase Price with respect to any
Property as to which this Agreement is terminated pursuant to the
terms hereof.
(ii)
There shall be added to, or deducted
from, the Purchase Price such amounts as may be required by
Article 9 .
(b)
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 Sellers.
SECTION 3.
TITLE,
DILIGENCE MATERIALS, ETC .
3.1
Title . Prior to the execution of this Agreement,
the Sellers have delivered the Existing Title Policy and the
Existing Survey for each Property to the Purchaser.
Within ten
(10) days after the execution hereof, the Purchaser shall
order an update to the Existing Title Policy for each Property
(each an “ Update ”, and collectively, the
“ Updates ”) from the Title Company. The
Purchaser shall deliver to the Sellers a copy of the Updates
promptly upon receipt thereof. Promptly after receipt of the
Updates, but, in any event, prior to the Closing Date, the
Purchaser shall give the Sellers written notice of any title
exceptions (other than Permitted Exceptions) set forth on any
Update as to which the Purchaser objects. The Sellers 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 their sole
discretion, the Sellers are unable
5
or unwilling to take
such actions as may be required to cause such exceptions to be
removed from such Update, the Sellers shall give the Purchaser
notice thereof; it being understood and agreed that the failure of
the Sellers to give prompt notice of objection shall be deemed an
election by the Sellers not to remedy such matters. If the
Sellers 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 only with respect to such
Property 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 Sellers given on or prior to the fifth (5
th ) Business Day after the Sellers’ notice of
their 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 P urchaser 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 Properties, and to review and
analyze all title examinations, surveys, environmental assessment
reports, building evaluations, financial data and other
investigations and materials pertaining to the Properties which the
Purchaser deems necessary to determine the feasibility of the
Properties and its decision to acquire the Properties,
(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 Properties, and (iii) the Purchaser shall not
have any right to terminate this Agreement as a result of any title
examinations, surveys, environmental assessments, building
valuations, financial analyses or other investigations with respect
to the Properties.
SECTION 4.
CONDITIONS TO THE PURCHASER’S OBLIGATION
TO CLOSE.
The obligation of
the Purchaser to acquire the Properties shall be subject to the
satisfaction of the following conditions precedent on and as of the
Closing Date:
6
4.1
Closing Documents . The Sellers shall have delivered, or
cause to have been delivered, to the Purchaser the
following:
(a)
(i) A good and sufficient deed in
the applicable form attached as Schedule D hereto, with
respect to each Property (other than the Property located at 340
Thompson Road, Webster, Massachusetts), in proper statutory form
for recording, duly executed and acknowledged by the applicable
Seller, conveying title to such Property, free from all liens and
encumbrances other than the Permitted Exceptions, or (ii) with
respect to the Property located at 340 Thompson Road, Webster,
Massachusetts, an assignment by MOB and an assumption by the
Purchaser, in form and substance reasonably satisfactory to MOB and
the Purchaser, duly executed and acknowledged by MOB and the
Purchaser, of all of MOB’s right, title and interest in, to
and under the Ground Lease, as applicable;
(b)
An assignment by the applicable Seller
and an assumption by the Purchaser, with respect to each Property,
in form and substance reasonably satisfactory to such Seller and
the Purchaser, duly executed and acknowledged by such Seller and
the Purchaser, of all of such Seller’s right, title and
interest in, to and under the Leases and all of such Seller’s
right, title and interest, if any, in, to and under all
transferable licenses, contracts, permits and agreements affecting
such Property; !
(c)
A bill of sale by the applicable
Seller, with respect to each Property, without warranty of any
kind, in form and substance reasonably satisfactory to such Seller
and the Purchaser, with respect to any personal property owned by
such Seller, situated at such Property and used exclusively by such
Seller in connection with such 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 any
Seller’s possession, original, fully executed copies of all
material documents and agreements, plans and specifications and
contracts, licenses and permits pertaining to the
Properties;
(e)
To the extent the same are in any
Seller’s possession, duly executed original copies of the
Leases;
(f)
A closing statement, with respect to
each Property, in form and substance reasonably satisfactory to the
applicable Seller and the Purchaser, duly executed and acknowledged
by such Seller and the Purchaser, showing the Allocable Purchase
Price,
7
apportionments
and fees, and costs and expenses paid in connection with the
Closing; and
(g)
Such other conveyance documents,
certificates, deeds and other instruments as the Purchaser, the
Sellers or the Title Company may reasonably require and as are
customary in like transactions in sales of property in similar
transactions.
4.2
Ground Lease Consent and
Estoppel . The Purchaser shall have obtained
a ground lease consent and estoppel certificate, in form and
substance reasonably satisfactory to the Purchaser, dated within
thirty (30) days prior to the Closing Date, with respect to the
Ground Lease.
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 Allocable Purchase Price for each
Property, insuring title to such 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 with respect to each
Property, authorizing the Purchaser and its designees and assignees
to rely on the most recent environmental assessment report prepared
for such Property, in form and substance reasonably acceptable to
t he Purchaser.
4.5
Condition of Property.
Each 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 .
(a)
All representations and warranties of
the Sellers herein shall be true, correct and complete in all
material respects on and as of the Closing Date and the Sellers
shall have performed in all material respects all covenants and
obligations required to be performed by the Sellers on or before
the Closing Date.
(b)
In the event that the conditions set
forth in this Section 4 have been satisfied with
respect to less than all of the Properties, Purchaser shall not be
relieved of any obligation hereunder with respect to those
Properties which are not subject to such unsatisfied
conditions.
8
SECTION 5.
CONDITIONS TO SELLERS’ OBLIGATION TO
CLOSE .
The obligation of
the Sellers to convey the Properties to the Purchaser is subject to
the satisfaction of the following conditions precedent on and as of
the Closing Date:
5.1
Purchase Price .
The Purchaser shall deliver to
the Sellers 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
Sellers duly executed and acknowledged counterparts of the
documents described in Section 4.1 , where
applicable.
5.3
Ground Lease Consent and
Estoppel . The Purchaser shall have obtained
a ground lease consent and estoppel certificate, in form and
substance reasonably satisfactory to the Purchaser, dated within
thirty (30) days prior to the Closing Date, with respect to the
Ground Lease.
5.4
Other
Conditions .
(a)
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.
(b)
In the event that the conditions set
forth in this Section 5 have been satisfied with
respect to less than all of the Properties, Sellers shall not be
relieved of any obligation hereunder with respect to those
Properties which are not subject to such unsatisfied
conditions.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF
SELLERS .
To induce the
Purchaser to enter into this Agreement, the Sellers represent and
warrant to the Purchaser as follows:
6.1
Status
and Authority of the Seller, Etc. Each 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.
9
6.2
Action
of the Seller, Etc. Each 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 any Seller on or prior to the Closing Date, this
Agreement and such document shall constitute the valid and binding
obligation and agreement of such Seller, enforceable against such
Seller in accordance with its terms, except as enforceability may
be limited by 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 any 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 any Property pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness
or any other agreement or instrument by which such Seller is
bound.
6.4
Litigation . To the Sellers’ actual knowledge,
no Seller has 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 any Property or
any portion thereof.
6.5
Existing Leases, Etc.
Subject to Section 8.1 , other than
the Leases listed in the Rent Roll, no Seller has entered into a
contract or agreement with respect to the occupancy of any Property
that will be binding on the Purchaser after the Closing. To
the Sellers’ actual knowledge: (a) the copies of the
Leases heretofore delivered by the Sellers to the Purchaser are
true, correct and complete copies thereof; and (b) the Leases
have not been amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between the
applicable Seller and the tenants thereunder. Except as
otherwise set forth in the Rent Roll or the Leases: (i) to the
Sellers’ actual knowledge, each of the Leases is in full
force and effect on the terms set forth therein; (ii) to the
Sellers’ 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 any
Property; (iii) to the Sellers’ actual knowledge, each
of their
10
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 Sellers’ actual
knowledge, none of their 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 any Property; (v) no Seller has any outstanding
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 their tenants has prepaid any rent or other
charges relating to the post-Closing period; (vii) to the
Sellers’ actual knowledge, none of their 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
wr
|