PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE AGREEMENT
(this “ Agreement
”) is made and entered into as of April 27, 2009, by and
among (i) SPIRIT MASTER FUNDING, LLC , a Delaware limited
liability company (“ SMF ”), and SPIRIT
MANAGEMENT COMPANY , a Delaware corporation (“ SMC
”) (references herein to “Seller” hereunder shall
be deemed to be references to SMF and/or SMC as applicable), on the
one hand, and (ii) GRAND CANYON EDUCATION, INC. , a Delaware
corporation and the successor-in-interest to Significant Education,
LLC, a Delaware limited liability company (“ Purchaser
”), on the other hand. Except as otherwise expressly defined
herein, capitalized terms will have the meanings set forth on
Exhibit A attached hereto and incorporated herein by
this reference.
WHEREAS, Purchaser is a regionally accredited
provider of postsecondary education services, which it offers
online and at the Property (as defined below);
WHEREAS, SMF is the owner of the Property and
leases the Property to the Purchaser pursuant to the
Lease;
WHEREAS, SMC is the record and beneficial owner
of 909,348 shares of Purchaser’s common stock, par value
$0.01 per share (the “ Shares ”), which
Purchaser has the right to acquire at any time on or prior to
November 18, 2011 for an aggregate purchase price of
$16,000,000, and which SMC may not transfer prior to such date;
and
WHEREAS, Purchaser desires to purchase from
Seller, and Seller desires to sell to Purchaser, the Property and
the Shares upon the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the
mutual covenants and promises hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby mutually covenant
and agree as follows:
PURCHASE OF PROPERTY AND
SHARES
Section 1.01. Agreement To
Purchase . Purchaser
agrees to purchase, and Seller agrees to sell, in accordance with
the terms, conditions and stipulations set forth in this Agreement
(the “ Transaction ”):
(a) all of SMF’s right, title and
interest in and to (i) the real property as more particularly
described on Exhibit B attached hereto, and any and all
improvements thereon and appurtenances thereto (collectively, the
“ Real Property ”); (ii) the furniture,
furnishings and fixtures affixed thereto, if any; (iii) all
plans and specifications, engineering plans and studies, and floor
plans and landscape plans pertaining to the Real Property in
Seller’s possession or under its control; (iv) all
mineral, oil and gas rights, water rights, sewer rights and other
utility rights allocated to the Real Property;
(v) all
appurtenances,
easements, licenses, privileges and other property interests
belonging or appurtenant to the Real Property; (vi) any roads,
streets and ways, public and private, serving the Real Property
(including without limitation, all rights to develop the Real
Property granted by Governmental Authorities having jurisdiction
over the Real Property); and (vii) all other property
interests belonging or appurtenant to the Real Property (all of the
foregoing items in clauses (i) through (vii) above, now
or hereafter existing, collectively, the “ Property
”); provided, that notwithstanding any provision contained in
this Agreement, expressly excluded from the definition of
“Property” are the following items: personal property,
appliances, furniture and equipment owned by Tenant or owned or
leased from third parties by the Tenant in possession of the
Property pursuant to the Lease from time to time situated on or
used in connection with the Property; and
(b) all of
SMC’s right, title and interest in and to the
Shares.
Section 1.02. Purchase Price
. The purchase price to be paid by
Purchaser to Seller for the Property and the Shares is Fifty
Million and 00/100 Dollars ($50,000,000) (the “ Purchase
Price ”). The Purchase Price, with such adjustments as
may be reflected on the closing settlement statements referenced in
Sections 5.01(a)(iv) and 5.02(a)(iv), shall be paid on the
Closing Date by wire transfer of immediately available federal
funds to an account designated in writing by Seller.
Section 1.03. Prorations
. All taxes, insurance, utilities
and maintenance expenses relating to the Property for the year of
Closing shall be prorated as of the Closing Date and Seller’s
portion thereof shall be paid by the Tenant, to the extent that
such expenses are obligations of the Tenant pursuant to the Lease.
All rents paid in advance or payable pursuant to the Lease shall be
prorated as of the Closing Date and shall be paid by Purchaser to
Seller or by Seller to Purchaser, as applicable, at
Closing.
Section 1.04. Condition of
Property . Seller and
Purchaser understand and agree that, except as expressly provided
by the terms of this Agreement, Purchaser’s purchase of the
Property and other rights to be conveyed, sold, transferred and/or
assigned pursuant to this Agreement shall be on an “AS
IS” “WHERE IS” physical basis, “WITH ALL
FAULTS,” without representation or warranty, express or
implied, with regard to physical condition, including without
limitation, any latent or patent defects, conditions of soils or
groundwater, existence or nonexistence of hazardous materials,
quality of construction, workmanship, merchantability or fitness
for any particular purpose as to the physical measurements or
useable space thereof. Purchaser hereby acknowledges that Purchaser
occupied the Property prior to Seller’s acquisition thereof;
Purchaser has continued to occupy and operate its business on the
Property since Seller’s acquisition thereof; Purchaser has
inspected or will inspect the Property to Purchaser’s
satisfaction; and Seller does not plan to conduct its own
inspection and shall not be liable for any latent or patent defects
in the Property. Purchaser acknowledges that, except as expressly
set forth in this Agreement, neither Seller nor any representative
or agent of Seller has made any representation or warranty as to
any of the following: (a) the physical or environmental
condition (including surface and subsurface conditions), state of
repair, income, expenses, operations of the
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Property and
surrounding property; (b) the assignability, assumability,
transferability or validity of any licenses, permits, government
approvals, warranties or guaranties relating to the Property or the
use and operation thereof; (c) the accuracy or completeness of
any information provided by Seller with respect to the Property;
(d) compliance or noncompliance with local, state or federal
statutes, ordinances, orders or regulations concerning the Property
or the use thereof; (e) prior or current operations conducted
on the Property; (f) the operation of any business conducted
at the Property; or (g) any matter or thing affecting or
relating to the Property, the Lease or this Agreement not expressly
set forth in this Agreement. Purchaser has not been induced by and
has not relied upon any statement, representation or agreement,
whether express or implied, not specifically set forth in this
Agreement. Except as expressly set forth in this Agreement or any
other Transaction Document, Seller shall not be liable or bound in
any manner by any oral or written statement, agreement or
information pertaining to the Property, the Tenant, the Lease or
this Agreement furnished by any agent, employee or other
Person.
Section 1.05. Purchaser’s Financing
Contingency . At or prior
to the Closing, Purchaser shall have obtained a market rate loan
for this Transaction in the amount of not less than Twenty Five
Million and 00/100 Dollars ($25,000,000) on terms acceptable to
Purchaser, in its sole and absolute discretion (the “
Loan ”), which Loan may be secured by the Property and
other assets of Purchaser. If Purchaser notifies Seller prior to
the Closing that Purchaser is unable to obtain the Loan at or prior
to the Closing, this Agreement shall terminate, in which event
neither Purchaser nor Seller shall have any further duties or
obligations under this Agreement, except as otherwise provided
herein.
Section 1.06. Lease . The parties acknowledge that the Property is
currently leased to Purchaser as Tenant under the Lease, and Seller
and Purchaser hereby agree that they shall enter into, on or before
the Closing Date, an unconditional and irrevocable termination of
the Lease (the “ Lease Termination ”) whereupon,
effective upon Closing and except in Tenant’s capacity as
Purchaser under this Agreement and except for those provisions in
the Lease that are to survive termination of the Lease, Tenant
shall have no right, title or interest in or to the Property or any
part thereof.
Section 1.07. Amendment to Lockup
Restriction; Transfer Instructions . Purchaser currently has the right to acquire
the Shares from SMC at any time prior to November 18, 2011,
and the Shares are subject to a lock-up restriction that restricts
SMC’s ability to transfer the Shares prior to such date (the
“ Lock-Up Restriction ”). On or before the
Closing Date, Purchaser and Seller shall provide written
instructions to Computershare Trust Company, N.A., as transfer
agent of Purchaser (“ Transfer Agent ”),
substantially in the form of Exhibit E attached hereto
and incorporated herein (“ Transfer Instructions
”), directing the Transfer Agent, effective upon the Closing
Date, to change the termination date of the Lock-Up Restriction
from November 18, 2011 to the Closing Date and to transfer the
Shares to Purchaser in accordance with the Transfer
Instructions.
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DUE DILIGENCE IN RESPECT OF THE
PROPERTY
Section 2.01. Title Insurance
.
(a) Title Commitment and Title
Policy . Purchaser has ordered an owner’s title
insurance commitment (“ Title Commitment ”) with
respect to the Property issued by the Title Company, for an
owner’s ALTA extended coverage title insurance policy (the
“ Title Policy ”) in the amount of the Purchase
Price, and a copy of the Title Commitment and copies of the
Schedule B-2 exceptions have been delivered to
Purchaser.
(b) Title Company . The Title
Company is hereby employed by the parties to act as escrow agent in
connection with the Transaction. This Agreement shall be used as
instructions to the Title Company, as escrow agent, which may
provide its standard conditions of acceptance of escrow;
provided, however, that in the event of any inconsistency
between such standard conditions of acceptance and the terms of
this Agreement, the terms of this Agreement shall prevail. The
Title Company’s receipt of this Agreement and the opening of
an escrow pursuant to this Agreement shall be deemed to constitute
conclusive evidence of the Title Company’s agreement to be
bound by the terms and conditions of this Agreement pertaining to
the Title Company.
(c) Title Company Actions . The
Title Company is authorized to pay, from any funds held by it for
each party’s respective credit and in accordance with the
closing statements executed by both parties, all amounts set forth
on the closing statements as necessary to procure the delivery of
any documents and to pay, on behalf of Purchaser and Seller, all
charges and obligations payable by them, respectively, in
connection with the Transaction. Seller and Purchaser will pay all
charges payable by them to the Title Company. The Title Company
shall not cause the consummation of the Transaction unless and
until it has received written instructions from Seller and
Purchaser to do so. The Title Company is authorized, in the event
any conflicting demand is made upon it concerning these
instructions or the escrow, at its election, to hold any documents
and/or funds deposited hereunder until an action shall be brought
in a court of competent jurisdiction to determine the rights of
Seller and Purchaser or to interplead such documents and/or funds
in an action brought in any such court. Deposit by the Title
Company of such documents and funds, after deducting therefrom its
reasonable expenses and attorneys’ fees incurred in
connection with any such court action, shall relieve the Title
Company of all further liability and responsibility for such
documents and funds.
(d) Permitted Title Encumbrances .
Purchaser has approved the exceptions set forth in the Title
Commitment that are set forth on Exhibit C attached
hereto and each of Seller and Purchaser agrees that it shall take
such actions as are necessary to enable the Title Company to issue
the Title Policy subject only to the Permitted
Encumbrances.
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Section 2.02. Seller Documents
. Seller has delivered to Purchaser,
with respect to the Property, all of the following items, to the
extent that such items are in Seller’s possession or under
its control (collectively, the “ Seller Documents
”):
(a) survey
or site plan related to the Property (the “ Survey
”);
(b) every environmental report relating to
the Property (the “ Environmental Report ”) and
any other third party diligence reports relating to the
Property;
(c)
“as-built” plans and specifications for improvements on
the Property;
(d) a
certificate of occupancy for the Property;
(e) copies of any existing leases, if any,
between Seller and tenants of the Property other than the
Lease;
(f) all drawings, plans, specifications and
all engineering reports for and relating to the Property;
and
(g) any other document related to the
Property that is reasonably requested by Purchaser, either prior to
or after Closing.
Except as expressly set forth in this Agreement,
Seller makes no representation or warranty regarding the Seller
Documents, or any other materials relating to the Property
delivered to Purchaser.
Section 2.03. Survey
. Purchaser may order an update to
the Survey (or a new survey) if required by the Title Company or
otherwise required by Purchaser in connection with the
Loan.
Section 2.04. Environmental
. Purchaser may, at its sole cost
and expense, order an update to the Environmental Report or a new
Phase I environmental assessment report, if deemed necessary by
Purchaser in its sole discretion.
Section 2.05. Inspections
. Purchaser has performed whatever
investigations, tests and inspections upon the Property that
Purchaser deemed appropriate (collectively, the “
Inspections ”) prior to the Closing Date. Purchaser
hereby waives any objections based upon the Inspections.
Section 3.01. Closing Date
. Subject to the provisions of
Article V of this Agreement, the closing date of the
Transaction (the “ Closing ”) shall occur on or
before April 30, 2009 (the “ Closing Date
”).
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Section 3.02. Actions Relating to the
Transaction . On or
before the Closing Date or as otherwise mutually agreed upon by
Seller and Purchaser:
(a) the parties shall deposit with the
Title Company and the Transfer Agent, as applicable, all documents
(including without limitation, the executed Transaction Documents)
necessary to comply with the parties’ respective obligations
with respect to the Transaction contemplated hereunder;
(b) Purchaser shall deposit the Purchase
Price and the parties shall deposit any other funds required
hereunder with the Title Company, in a timely manner to permit the
consummation of the Transaction on the Closing Date; and
(c) (i) possession of the Property, free
and clear of all tenants or other parties in possession, except for
Purchaser as Tenant, and any subtenants of Tenant, and
(ii) ownership of the Shares, free and clear of all liens and
encumbrances, shall be delivered to Purchaser.
Section 3.03. Transaction Costs
. Except as otherwise expressly set
forth in this Agreement, all costs associated with the Transaction,
including without limitation, updates (if any) of the Survey, the
cost of the premium related to the Title Policy and all reasonable
endorsements thereto, recording fees, transfer taxes and all
closing and escrow costs, shall be shared one-half by Purchaser and
one-half by Seller; provided, however, that notwithstanding
the foregoing, each party shall bear its own attorneys’ fees
and costs in connection with the Transaction, and Purchaser shall
bear all costs associated with its procurement of the Loan,
including without limitation, any endorsements to any
lender’s title insurance policy, and the fees, if any,
charged by the Transfer Agent in connection with the transfer of
the Shares to Purchaser.
REPRESENTATIONS WARRANTIES AND
COVENANTS
Section 4.01. Seller
. Seller represents and warrants to,
and covenants with, Purchaser as follows:
(a) Organization and Authority .
Seller is duly organized or formed, validly existing and in good
standing under the laws of its state of formation. Seller has all
requisite power and authority to execute, deliver and perform its
obligations under this Agreement and all of the other Transaction
Documents, and to carry out the Transaction. The Person who has
executed this Agreement on behalf of Seller has been duly
authorized to do so.
(b) Enforceability of Documents .
Upon execution by Seller, this Agreement and the other Transaction
Documents shall constitute the legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their
respective terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium, or
other similar laws relating to or affecting the rights of creditors
generally, or by general equitable principles.
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(c) No Other Agreements and
Options . Except as set forth in the Lease, Seller has made
no commitment, obligation, or agreement, including, without
limitation, any right of first refusal, option to purchase or lease
granted to a third party, which could prevent Seller from
completing or impair Seller’s ability to complete the sale of
the Property under this Agreement, or which would bind Purchaser
subsequent to consummation of the Transaction.
(d) No Violations . The
authorization, execution, delivery and performance of this
Agreement and the other Transaction Documents will not
(i) violate any provisions of the organizational documents of
Seller, (ii) result in a violation of or a conflict with, or
constitute a default (or an event which, with or without due notice
or lapse of time, or both, would constitute a default) under any
other document, instrument or agreement to which Seller is a party
or by which Seller, the Property or any of the property of Seller
is subject or bound, (iii) result in the creation or
imposition of any lien, restriction, charge or limitation of any
kind, upon the Property or the Shares, or (iv) to
Seller’s actual knowledge, without inquiry, violate any
applicable law, statute, regulation, rule, ordinance, code, rule or
order of any court or Governmental Authority.
(e) Consents and Approvals . No
consent, approval, waiver, license, permit, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority, and no consent, approval, waiver or other similar
authorization of any other Person, is required to be obtained by or
on behalf of Seller as a result of, or in connection with, or as a
condition of the lawful execution, delivery and performance of this
Agreement or the consummation of the Transaction contemplated
hereby.
(f) Compliance . Except as may be
contained in any Seller Document delivered to Purchaser, Seller has
not received notification from any Governmental Authority or other
third party that the Property or the condition or use thereof is in
violation of (i) any applicable statutes, regulations, rules,
ordinances, codes, licenses, permits, orders and approvals of any
Governmental Authority having jurisdiction over the Property,
(ii) any restrictions, covenants and encumbrances of record
with respect to the Property, or (iii) any agreements, contracts,
insurance policies and conditions applicable to the Property or the
ownership, operation, use or possession thereof.
(g) Compliance with Anti-Terrorism,
Embargo, Sanctions and Anti-Money Laundering Laws . Without
in any way limiting the provisions of Section 4.01(f), Seller
is not currently identified on the OFAC List, and is not a Person
with whom a citizen of the United States is prohibited from
engaging in transactions by any trade embargo, economic sanction,
or other prohibition of United States law or regulation.
(h) Litigation . Seller has not
received notification from any Governmental Authority or third
party of any legal, administrative, arbitration or other
proceeding, claim or action pending or involving or, to
Seller’s actual knowledge without inquiry, threatened against
or with respect to the Property before any Governmental
Authority.
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(i) Title to Property . Title to
the Property is vested in Seller. Upon Closing, title to the
Property shall be vested in Purchaser or its nominee or assigns (if
any), free and clear of all liens, restrictions, encroachments and
easements, except for the Permitted Encumbrances.
(j) Title to Shares . Seller is
the sole record and beneficial owner of the Shares; and except for
the Lock-Up Restriction, (i) Seller has good and valid title
to the Shares, free and clear of all liens or encumbrances, and
free and clear of any rights and restrictions of any nature other
than those imposed by applicable federal and state securities laws
; and (ii) Seller is not bound by any contract, agreement,
arrangement, commitment or understanding (written or oral) with,
and has not granted any option, right or other interest to, any
Person with respect to the Shares. Seller will transfer to
Purchaser legal and beneficial ownership, and good and valid title,
to the Shares, free and clear of all liens and
encumbrances.
(k) Condemnation; Blighted Areas;
Wetlands . Seller has not received notification from any
Governmental Authority or third party of any pending or
contemplated (i) condemnation or eminent domain proceedings
affecting the Property, (ii) declaration of the Property being
located in a blighted area, or (iii) designation of the
Property as wetlands.
(l) Environmental . Except as may
be contained in an Environmental Report, Seller has not received
any written or oral notice or other communication regarding the
Property from any Person (including but not limited to a
Governmental Authority) relating to (i) Hazardous Materials,
Regulated Substances or underground storage tanks, or remediation
thereof, (ii) the possible liability of any Person pursuant to any
Hazardous Materials Law, (iii) other environmental conditions
in connection with the Property, or (iv) any actual or
potential administrative or judicial proceedings in connection with
any of the foregoing.
(m)
Securities Law Matters .
(i) Seller is an institutional
“accredited investor” as defined in Rule 501 under
the Securities Act of 1933, as amended.
(ii) The decision to sell the Shares as
part of the Transaction has been made by Seller, and Seller
confirms that it has undertaken an independent analysis of the
merits and risks of a sale of the Shares, based on Seller’s
own financial circumstances.
(iii) Seller has had the opportunity to
review publicly available information regarding Purchaser and to
ask questions of, and receive answers from, Purchaser concerning
such information (it being understood that Seller has neither
requested nor received material, non-public information from
Purchaser).
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(iv) In making a decision to sell the
Shares, Seller has not received or relied on any communication,
investment advice, or recommendation from Purchaser.
All representations, warranties and covenants of
Seller made in this Agreement, except as otherwise expressly set
forth herein, shall survive for one (1) year following
Closing.
Section 4.02. Purchaser
. Purchaser represents and warrants
to, and covenants with, Seller as follows:
(a) Organization and Authority .
Purchaser is duly organized and formed, validly existing and in
good standing under the laws of its state of formation. Purchaser
has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and all of the other
Transaction Documents and to carry out the Transaction. The Person
who has executed this Agreement on behalf of Purchaser has been
duly authorized to do so.
(b) Enforceability of Documents .
Upon execution by Purchaser, this Agreement and the other
Transaction Documents shall constitute the legal, valid and binding
obligations of Purchaser, enforceable against Purchaser in
accordance with their respective terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium, or other similar laws relating to or
affecting the rights of creditors generally, or by general
equitable principles.
(c) Litigation . There are no
actions or proceedings pending against or involving Purchaser
before any Governmental Authority which in any way adversely affect
or may adversely affect Purchaser or Purchaser’s ability to
perform under this Agreement and the other Transaction
Documents.
(d) OFAC List . Purchaser is not
currently identified on the OFAC List, and is not a Person with
whom a citizen of the United States is prohibited from engaging in
transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or executive order of
the President of the United States.
(e) Bankruptcy Petition .
Purchaser hereby agrees that it shall not institute against, or
join any other Person in instituting against, Seller, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or any other proceeding under any federal or state
bankruptcy or similar law. The provisions of this Section shall
survive Closing or termination of this Agreement.
(f) Consents and Approvals . No
consent, approval, waiver, license, permit, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority, and no consent, approval, waiver or other similar
authorization of any other Person, is required to be obtained by or
on behalf of Purchaser as a result of, or in connection with, or as
a condition of the lawful execution, delivery and performance of
this Agreement or the consummation of the Transaction contemplated
hereby.
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All representations, warranties and covenants of
Purchaser made in this Agreement, except as otherwise expressly set
forth herein, shall survive for one (1) year following
Closing.
CONDITIONS PRECEDENT TO
CLOSING
Section 5.01. Purchaser’s Conditions
to Closing . Purchaser
shall not be obligated to effect the Closing until the fulfillment
(or written waiver by Purchaser) of all of the following
conditions:
(a) Seller
shall have delivered to the Title Company each of the following
items:
(i) fully executed Deed, Lease Termination
and all other Transaction Documents;
(ii) a duly executed FIRPTA affidavit from
Seller in the form attached hereto as Exhibit D
(“ Non-Foreign Seller Certificate ”);
(iii) other documents that may be required
by the Title Company for issuance of the Title Policy;
(iv) a closing settlement statement
reflecting the credits, prorations, and adjustments contemplated by
or specifically provided for in this Agreement;
(v) all documents required to be delivered
by this Agreement and the other Transaction Documents with respect
to the Property; and
(vi) such further documents as reasonably
may be required in order to fully and legally effect the
Transaction.
(b) Purchaser shall have received the Title
Commitment and the Title Company’s irrevocable commitment to
insure title by means of the Title Policy, in form and substance
acceptable to Purchaser.
(c) Purchaser’s lender shall have
received from the Title Company an irrevocable commitment to issue
an ALTA lender’s policy of title insurance, in form and
substance acceptable to Purchaser’s lender.
(d) Purchaser’s lender shall have
funded the Loan.
(e) The
Transaction shall have been approved by Purchaser’s board of
directors.
(f) The acceptance of the Transfer
Instructions by Transfer Agent.
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Upon the fulfillment or Purchaser’s
written waiver of all of the above conditions, Purchaser shall
deposit the Purchase Price with the Title Company for payment to
Seller and the Closing of the Transaction shall occur in accordance
with the terms and conditions of this Agreement. Unless otherwise
dated, all of the documents to be delivered at Closing shall be
dated as of the Closing Date.
Section 5.02. Seller’s Conditions
Precedent to Closing .
Seller shall not be obligated to effect the Closing until the
fulfillment (or written waiver by Seller) of all of the following
conditions:
(a) Purchaser shall have delivered to the
Title Company each of the following items:
(i) the Purchase Price in immediately
available federal funds;
(ii) fully executed Lease Termination and
all other Transaction Documents;
(iii) other documents that may be required
by the Title Company for issuance of the Title Policy;
(iv) a closing settlement statement
reflecting the credits, prorations, and adjustments contemplated by
or specifically provided for in this Agreement;
(v) all documents required to be delivered
by this Agreement and the other Transaction Documents with respect
to the Property; and
(vi) such further documents as reasonably
may be required in order to fully and legally effect the
Transaction.
(b) Seller shall have obtained all third
party consents deemed necessary in Seller’s sole discretion
for the release of any Seller mortgage or other document (including
any securitization document) which encumbers the
Property.
(c) The delivery of the Transfer
Instructions by Purchaser and the acceptance thereof by Transfer
Agent.
Section 6.01. Default
. Each of the following shall be
deemed an event of default (each, an “ Event of
Default ”):
(a) if any representation or warranty of a
party set forth in this Agreement or any other Transaction Document
is false in any material respect or if a party renders any false
statement; or
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(b) if a party fails to keep or perform any
of the terms or provisions of this Agreement or if any condition
precedent is not satisfied by the other party.
Section 6.02. Purchaser Remedies
. In the event of any Event of
Default by Seller, Purchaser shall be entitled to exercise any one
or more of the following remedies:
(a) Purchaser may seek specific performance
and/or injunctive relief with respect to any covenants or
agreements of Seller hereunder; and/or
(b) Purchaser may recover damages,
including without limitation, Purchaser’s actual and
reasonable out-of-pocket costs related to this Agreement and the
Transaction intended hereunder.
Section 6.03. Seller Remedies
. In the event of any Event of
Default by Purchaser, Seller shall be entitled to exercise any one
or more of the following remedies:
(a) Seller may seek specific performance
and/or injunctive relief with respect to any covenants or
agreements of Purchaser hereunder; and/or
(b) Seller may recover damages, including
without limitation, Seller’s actual and reasonable
out-of-pocket costs related to this Agreement and the Transaction
intended hereunder.
Section 6.04. Waiver
. Purchaser and Seller each hereby
waive all other rights and remedies not expressly provided for
herein, whether in law or in equity, including, without limitation,
any right to seek rescission with respect to the transfer of, or
assert any lien or oth
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