Additional Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser, and to Purchaser’s successors and assigns, as of the Effective Date, that: (a) Seller is the sole legal and beneficial owner of and has good and marketable title to the Transferred Rights, free and clear of any and all liens, claims, security interests, participations, or encumbrances of any kind or nature whatsoever and will transfer to Purchaser such good and marketable title, free and clear of liens and encumbrances of any kind; (b) no payment or other distribution has been received by or on behalf of Seller in full or partial satisfaction of the Transferred Rights; (c) Seller has not previously sold, conveyed, transferred, assigned, participated, pledged or otherwise encumbered the Transferred Rights, in whole or in part, to any party (or agreed to do any of the foregoing); (d) Seller has not engaged in any acts, conduct or omissions, or had any relationship with the Debtors or its affiliates, that would reasonably result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other similarly situated creditors of the Debtors; (e) Seller has not received any written notice, other than those publicly available in the Cases (if any) or otherwise, that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind; (f) Seller is not an “affiliate” or “insider” within the meaning of Sections 101(2) and 101(31), respectively, of the Bankruptcy Code and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Cases; (g) Seller is not, and never has been, “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code or within the meaning of Section 101(32) of the Bankruptcy Code; (h) Seller has no obligation or liability to the Debtors, and has not effected and will not effect any netting, setoff or recoupment against the Debtors in respect of the Transferred Rights; and (i) either (i) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans (as defined below) or (ii) the transaction exemption set forth in one or more U.S. Department of Labor Prohibited Transaction Exemptions (“PTEs”), such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers) is applicable with respect to the sale of the Transferred Rights. “Benefit Plan” means an “employee benefit plan” as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it (“ERISA”) and subject to Title I thereof, a “plan” as defined in Section 4975 of the United States Internal Revenue Code or any Entity whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the United States Internal Revenue Code) the assets of any such “employee benefit plan” or “plan.”
Appears in 2 contracts
Samples: Assignment of Claims Agreement (DHT Holdings, Inc.), Assignment of Claims Agreement (DHT Holdings, Inc.)
Additional Representations and Warranties of Seller. (a) Seller hereby represents and warrants to PurchaserPurchaser as follows: Schedule "E" attached hereto accurately sets forth (a) all agreements in force on the date hereof for the use, lease or occupancy of space in or at the Building (whether or not the terms hereof have commenced) to which Seller, its affiliates or designees are a party or are bound as landlord or to which any part of the Building is subject, (b) all subleases in force on the date hereof for the use, lease or occupancy of space in or at the Building (whether or not the terms thereof have commenced) to which any tenant under an Existing Lease is a party or is bound as sublandlord, and (c) all other tenancies or subtenancies in the Premises not arising out of the agreements or the subleases referred to in clauses (a) and (b) above, affecting the Premises on the date hereof (the agreements and subleases referred to in said clauses (a) and (b), together with all amendments and modifications thereof, and all of the tenancies and subtenancies referred to in clause (c) above are collectively referred to as the "Existing Leases," and all tenants, subtenants or other occupants of space pursuant to an Existing Lease are hereinafter collectively referred to as "Existing Tenant(s)". Seller is not a party to any sublease for the use, lease or occupancy of space in or at the Building (whether or not the term thereof has commenced). The data set forth on said Schedule "E" with respect to each Existing Lease includes an accurate statement of the name of each Existing Tenant, the space demised, the lease, sublease or tenancy expiration date, the security deposits and the base annual rent and additional rent currently payable. To the best of Seller's knowledge, no person or entity has or claims any right to possess the Premises or any part thereof except for the Existing Tenants shown in said Schedule "E". True and complete copies of all the Existing Leases and all guaranties and other documents, agreements and instruments relating thereto have been delivered to Purchaser but, for purposes of this Contract, Purchaser may rely on the data set forth in said Schedule "E". Except as otherwise set forth in said Schedule "E" or in the Existing Leases, to be best of Seller's knowledge:
(i) each of the Existing Leases is in effect and has not expired or been terminated; Seller has neither given nor received any notice of default with respect to any Existing Lease that remains uncured; to the best knowledge of Seller, neither Seller, nor any of the other parties thereto are in default of any of their obligations under any of the Existing Leases (other than with respect to a possible improper assignment by Xxxxx Xxxxx, as reflected in correspondence between Seller and such tenant (copies of which have been delivered to Purchaser’s successors )); and assignsnone of the Existing Leases has been modified, amended or extended;
(ii) to the best of Seller's knowledge, all Existing Tenants are in possession of the spaces leased by them;
(iii) the rents and any Additional Rents reserved under each of the Existing Leases and shown in said Schedule "E" are legal rents and no claim to the contrary has been asserted by any Existing Tenant, and the rents and Additional Rents shown on said Schedule "E" are actually being paid by the Existing Tenants, and there are no arrearages in excess of one (1) month of any base, minimum or fixed rent (as opposed to any Additional Rent);
(iv) no Existing Tenant has paid rent for more than one (1) month in advance;
(v) no Existing Tenant has claims or is entitled to free rent, rent concessions, rebates or rent abatements;
(vi) no Existing Tenant claims or is entitled to any set-offs or offsets against rent;
(vii) no Existing Tenant occupies any space rent free;
(viii) no space has been rented furnished;
(ix) all work previously required to be performed by the landlord under the Existing Leases or otherwise has been completed and fully paid for;
(x) no Existing Tenant is contesting its pro-rata share of taxes, operating expenses or maintenance increases shown in said Schedule "E" or their obligations to pay cost-of-living increases or any other Additional Rent as required by its Existing Lease;
(xi) except pursuant to an assignment of leases and rents granted by Seller to its fee mortgagee, Seller has assigned none of its rights under the Existing Leases;
(xii) no Existing Tenant has an option to renew its lease not provided in its Existing Lease and no other party has any option, right of first refusal or other preferential right to purchase the Premises or any part thereof;
(xiii) no action or proceeding instituted against Seller by any Existing Tenant, or by any Existing Tenant against Seller, is presently pending in any court or other judicial or administrative venue, nor has Seller received any written notices or demands with respect thereto;
(xiv) no representation or covenant has been made by Seller to any Existing Tenant except as incorporated in its Existing Lease and all representations made by Seller in the Existing Leases and in all other documents, agreements and instruments relating thereto are true and correct in all material respects;
(xv) no Existing Lease allows the space demised thereunder to be leased or otherwise used for any purpose which is prohibited by a restrictive covenant contained in any other Existing Lease;
(xvi) any consents or notices required to be obtained or given under the terms of any Existing Lease in connection with this transaction have been obtained or given, as the case may be;
(xvii) there are no security deposits other than those set forth in said Schedule "E"; and
(xviii) there are no outstanding obligations of Seller with respect to any space previously leased or otherwise occupied by an Existing Tenant at a location other than at the Building.
(b) Annexed hereto as Schedule "H" and made a part hereof is a list of all service, maintenance and supply contracts (collectively, "Service Contracts") relating to the Premises and all deposits of Seller held by utility companies and other persons and entities who supply goods or services in connection with the operation of the Property, and the information set forth therein is accurate as of the Effective Datedate hereof. If Seller has delivered a notice of termination to the vendor under any Service Contract pursuant to Section 9.02 hereof, that:Seller, at the Closing, shall deliver a copy of such notice to Purchaser.
(ac) With respect to any contracts referred to in Schedule "G" (payroll schedule) or Schedule "H", if there are any pending negotiations with any union or Service Contract holder which may involve retroactive increases in pay or rates, Seller agrees to reimburse Purchaser for the amount thereof with respect to any period through the date of the Closing, even though the increases may be effected after the date of the Closing.
(d) To the best knowledge of Seller: (i) the use being made of the Premises at present is not in conformity with the certificate of occupancy issued for the Premises; (ii) all required certificates and permits of such type, including, without limitation, underwriters certificates relating to electrical work, and all other building, housing, safety, fire and health certificates, approvals and permits have been issued, are in full force and effect and (except as otherwise indicated thereon) are transferable with the Premises or to Purchaser without payment; (iii) the Premises and the present use and condition thereof do not violate any deed restrictions, zoning or subdivision regulations, or urban redevelopment plans applicable to the Premises, as modified by any duly issued variances; and (iv) no action or proceeding relating to the foregoing is pending or threatened with respect to the Premises.
(e) To the extent that an assessment that is payable in installments becomes a lien on the Premises on or before the Closing, the assessment shall be adjusted based upon the period covered thereby or, if no period is specified, upon the due date thereof.
(f) All brokerage commissions payable by reason of the Existing Leases and/or renewals, elections not to terminate, extensions of Existing Leases or options to lease additional space or otherwise with respect to leasing transactions have been fully paid or will be paid when due by Seller, except only that (i) any brokerage commissions payable by reason of New Leases (as defined in Article 22 hereof) permitted pursuant to Article 22 hereof, which are made or entered into on or after the date of this Contract, shall be apportioned between the parties based upon the rent collectible by each party and shall be payable by Purchaser and (ii) Seller is and Purchaser shall apportion any brokerage commissions payable by reason of renewals or extensions of Existing Leases or options to lease additional space exercised after the Closing pursuant to the applicable Existing Lease provisions based upon the period commencing on the rent commencement date of any such renewal or extension and ending on the expiration date of any such renewal or extension. From and after the date hereof until the Closing, Purchaser shall be the sole legal leasing broker for the Premises (except as otherwise provided in Sections 22(b) and beneficial owner 22(d) hereof) and shall have the right to charge leasing commissions at standard industry rates.
(g) To the best of Seller's knowledge, all construction reimbursements, tenant improvement allowances and similar payments to be made by the landlord under the Existing Leases have been paid in full or will be paid in full prior to the Closing.
(h) To the best of Seller's knowledge, the description of the Personal Property is accurate as of the date hereof and will be accurate as of the date of the Closing, subject to disposal and/or replacement of such property in the ordinary course of business.
(i) There is no litigation pending or, to the best knowledge of Seller, threatened against Seller, the Premises or the transactions contemplated by this Contract (except as provided in Section 21(a)(i) hereof with respect to Xxxxx Xxxxx). To the best of Seller's knowledge, there is no proceeding (zoning or otherwise) or governmental investigation pending or threatened against or relating to Seller, the Premises or the transactions contemplated by this Contract, nor, to the best knowledge of Seller, is there any basis for such action.
(j) Seller has not received written notice of any default or breach by Seller under any of the covenants, conditions, restrictions, rights of way or easements affecting the Premises or any portion thereof; to the best knowledge of Seller, no such default or breach now exists; and, to the best knowledge of Seller, no event has occurred and is continuing which with notice and/or the passage of time would constitute a default thereunder.
(k) No work has been performed or is in progress at, and no materials have been furnished to, the Premises or any portion thereof for which Seller is responsible and which, though not at present the subject of, might give rise to, mechanic's, materialmen's or other liens against the Premises or any portion thereof.
(l) To the best knowledge of Seller, there are no outstanding requirements or recommendations by any insurance company that issued a policy with respect to the Premises or any part thereof, or by any Board of Fire Underwriters or other body exercising similar functions, requiring or recommending any repairs or work to be done on or to the Premises.
(m) This Contract has been duly and validly authorized, executed and delivered by Seller and Seller has full power and authority to consummate the transactions contemplated hereby, and the Closing will not constitute a breach or violation of any contract or instrument to which Seller is a party, or by which it or any of its assets are subject or bound, or any judgment, order, writ, injunction or decree issued against or imposed upon it, or will result in a violation of any applicable law, order, rule or regulation of any governmental authority.
(n) No person or entity has an option, right of first refusal or other preferential right to purchase the Premises or any part thereof.
(o) No Existing Tenant has executed or delivered to Seller any promissory notes or other instruments pursuant to which an Existing Tenant is indebted to its landlord, and Seller does not own and is not holding any such notes or other instruments.
(p) True and complete copies of all Service Contracts and any and all other instruments, documents and agreements recited in this Contract (other than documents to be executed and delivered at the Closing), and all amendments to all of the foregoing, have been delivered to Purchaser.
(q) Seller (i) is a New York limited partnership validly existing in the State of New York, (ii) owns the fee interest in the Premises and (iii) has good and marketable title to the Transferred Rights, free and clear of any and all liens, claims, security interests, participations, or encumbrances of any kind or nature whatsoever and will transfer to Purchaser such good and marketable title, free and clear of liens and encumbrances of any kind;Personal Property.
(br) To the best of Seller's knowledge, no payment fact or condition exists which would result in the termination or impairment of access to the Premises or the discontinuation of necessary sewer, water, electric, gas, telephone or other distribution utilities or services to the Premises.
(s) To the best of Seller's knowledge, Seller has been received by or on behalf of Seller in full or partial satisfaction filed with all of the Transferred Rights;applicable governmental authorities having jurisdiction over the Premises, all statements, affidavits, documents and other instruments with respect to the Premises and the operation and use thereof that are required to be filed by applicable laws, rules, regulations, and ordinances.
(ct) Seller has not previously sold, No air rights or development rights appurtenant to the Premises have been conveyed, transferred, assignedgranted or licensed to any third party.
(u) To the best of Seller's knowledge, participatedneither Seller, pledged nor to Seller's knowledge, any other person has ever caused or permitted any Hazardous Substance (hereinafter defined) to be placed, located, spilled or otherwise encumbered disposed of on under or at the Transferred RightsPremises or any part thereof in violation of any Environmental Laws (hereinafter defined), excluding materials used in whole or in part, to any party (or agreed to do any the maintenance and operation of the foregoing);
(d) Seller has not engaged in any acts, conduct or omissions, or had any relationship with the Debtors or its affiliates, that would reasonably result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other similarly situated creditors of the Debtors;
(e) Seller has not received any written notice, other than those publicly available in the Cases (if any) or otherwise, that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind;
(f) Seller is not an “affiliate” or “insider” within the meaning of Sections 101(2) and 101(31), respectively, of the Bankruptcy Code and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Cases;
(g) Seller is not, and never has been, “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code or within the meaning of Section 101(32) of the Bankruptcy Code;
(h) Seller has no obligation or liability to the Debtors, and has not effected and will not effect any netting, setoff or recoupment against the Debtors in respect of the Transferred Rights; and
(i) either (i) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans (as defined below) or (ii) the transaction exemption set forth in one or more U.S. Department of Labor Prohibited Transaction Exemptions (“PTEs”)Premises, such as PTE 84-14 cleaning materials (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers) is applicable other than with respect to the sale removal of certain containers of chemicals abandoned at the Transferred RightsPremises by a former tenant as reflected in Hazardous Waste Manifest dated November 10, 1995 of Chemical Waste Disposal Corp., copies of all documents with respect thereto having been delivered to Purchaser). “Benefit Plan” means an “employee benefit plan” as defined in the Employee Retirement Income Security Act of 1974There is not now pending, as amended, and the rules and regulations promulgated under it (“ERISA”) and subject to Title I thereof, a “plan” as defined in Section 4975 of the United States Internal Revenue Code or nor has Seller received any Entity whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the United States Internal Revenue Code) the assets notice of any such “employee benefit plan” threatened, investigation, action or “planproceeding against Seller or the Premises seeking to enforce any right or remedy under any Environmental Laws. "Hazardous Substance" shall mean any material or substance governed or regulated or defined under any local, state or Federal law, rule ordinance, code, regulation, order or decree regulating, relating to or imposing liability or standards of conduct with regard to hazardous, toxic or dangerous waste, substances or materials or regulating or governing air or water quality, the environment or environmental, health safety or hygiene ("Environmental Laws").”
Appears in 1 contract
Additional Representations and Warranties of Seller. (a) Seller hereby represents and warrants to PurchaserPurchaser as follows: Schedule "E" attached hereto accurately sets forth (a) all agreements in force on the date hereof for the use, lease or occupancy of space in or at the Building (whether or not the terms hereof have commenced) to which Seller, its affiliates or designees are a party or are bound as landlord or to which any part of the Building is subject, (b) all subleases in force on the date hereof for the use, lease or occupancy of space in or at the Building (whether or not the terms thereof have commenced) to which any tenant under an Existing Lease is a party or is bound as sublandlord, and (c) all other tenancies or subtenancies in the Premises not arising out of the agreements or the subleases referred to Purchaser’s successors in clauses (a) and assigns(b) above, affecting the Premises on the date hereof (the agreements and subleases referred to in said clauses (a) and (b), together with all amendments and modifications thereof, and all of the tenancies and subtenancies referred to in clause (c) above are collectively referred to as the "Existing Leases," and all tenants, subtenants or other occupants of space pursuant to an Existing Lease are hereinafter collectively referred to as "Existing Tenant(s)". Seller is not a party to any sublease for the use, lease or occupancy of space in or at the Building (whether or not the term thereof has commenced). The data set forth on said Schedule "E" with respect to each Existing Lease includes an accurate statement of the name of each Existing Tenant, the space demised, the lease, sublease or tenancy expiration date, the security deposits and the base annual rent and additional rent currently payable. To the best of Seller's knowledge, no person or entity has or claims any right to possess the Premises or any part thereof except for the Existing Tenants shown in said Schedule "E". True and complete copies of all the Existing Leases and all guaranties and other documents, agreements and instruments relating thereto have been delivered to Purchaser but, for purposes of this Contract, Purchaser may rely on the data set forth in said Schedule "E". Except as otherwise set forth in said Schedule "E" or in the Existing Leases, to be best of Seller's knowledge:
(i) each of the Existing Leases is in effect and has not expired or been terminated; Seller has neither given nor received any notice of default with respect to any Existing Lease that remains uncured; to the best knowledge of Seller, neither Seller, nor any of the other parties thereto are in default of any of their obligations under any of the Existing Leases; and none of the Existing Leases has been modified, amended or extended;
(ii) to the best of Seller's knowledge, all Existing Tenants are in possession of the spaces leased by them;
(iii) the rents and any Additional Rents reserved under each of the Existing Leases and shown in said Schedule "E" are legal rents and no claim to the contrary has been asserted by any Existing Tenant, and the rents and Additional Rents shown on said Schedule "E" are actually being paid by the Existing Tenants, and there are no arrearages in excess of one (1) month of any base, minimum or fixed rent (as opposed to any Additional Rent);
(iv) no Existing Tenant has paid rent for more than one (1) month in advance;
(v) no Existing Tenant has claims or is entitled to free rent, rent concessions, rebates or rent abatements;
(vi) no Existing Tenant claims or is entitled to any set-offs or offsets against rent;
(vii) no Existing Tenant occupies any space rent free;
(viii) no space has been rented furnished;
(ix) all work previously required to be performed by the landlord under the Existing Leases or otherwise has been completed and fully paid for;
(x) no Existing Tenant is contesting its pro-rata share of taxes, operating expenses or maintenance increases shown in said Schedule "E" or their obligations to pay cost-of-living increases or any other Additional Rent as required by its Existing Lease;
(xi) except pursuant to an assignment of leases and rents granted by Seller to its fee mortgagee, Seller has assigned none of its rights under the Existing Leases;
(xii) no Existing Tenant has an option to renew its lease not provided in its Existing Lease and no other party has any option, right of first refusal or other preferential right to purchase the Premises or any part thereof;
(xiii) no action or proceeding instituted against Seller by any Existing Tenant, or by any Existing Tenant against Seller, is presently pending in any court or other judicial or administrative venue, nor has Seller received any written notices or demands with respect thereto;
(xiv) no representation or covenant has been made by Seller to any Existing Tenant except as incorporated in its Existing Lease and all representations made by Seller in the Existing Leases and in all other documents, agreements and instruments relating thereto are true and correct in all material respects;
(xv) no Existing Lease allows the space demised thereunder to be leased or otherwise used for any purpose which is prohibited by a restrictive covenant contained in any other Existing Lease;
(xvi) any consents or notices required to be obtained or given under the terms of any Existing Lease in connection with this transaction have been obtained or given, as the case may be;
(xvii) there are no security deposits other than those set forth in said Schedule "E"; and
(xviii) there are no outstanding obligations of Seller with respect to any space previously leased or otherwise occupied by an Existing Tenant at a location other than at the Building.
(b) Annexed hereto as Schedule "H" and made a part hereof is a list of all service, maintenance and supply contracts (collectively, "Service Contracts") relating to the Premises and all deposits of Seller held by utility companies and other persons and entities who supply goods or services in connection with the operation of the Property, and the information set forth therein is accurate as of the Effective Datedate hereof. If Seller has delivered a notice of termination to the vendor under any Service Contract pursuant to Section 9.02 hereof, that:Seller, at the Closing, shall deliver a copy of such notice to Purchaser.
(ac) With respect to any contracts referred to in Schedule "G" (payroll schedule) or Schedule "H", if there are any pending negotiations with any union or Service Contract holder which may involve retroactive increases in pay or rates, Seller agrees to reimburse Purchaser for the amount thereof with respect to any period through the date of the Closing, even though the increases may be effected after the date of the Closing.
(d) To the best knowledge of Seller: (i) the use being made of the Premises at present is in conformity with the certificate of occupancy issued for the Premises; (ii) all required certificates and permits of such type, including, without limitation, underwriters certificates relating to electrical work, and all other building, housing, safety, fire and health certificates, approvals and permits have been issued, are in full force and effect and (except as otherwise indicated thereon) are transferable with the Premises or to Purchaser without payment; (iii) the Premises and the present use and condition thereof do not violate any deed restrictions, zoning or subdivision regulations, or urban redevelopment plans applicable to the Premises, as modified by any duly issued variances; and (iv) no action or proceeding relating to the foregoing is pending or threatened with respect to the Premises.
(e) To the extent that an assessment that is payable in installments becomes a lien on the Premises on or before the Closing, the assessment shall be adjusted based upon the period covered thereby or, if no period is specified, upon the due date thereof.
(f) All brokerage commissions payable by reason of the Existing Leases and/or renewals, elections not to terminate, extensions of Existing Leases or options to lease additional space or otherwise with respect to leasing transactions have been fully paid or will be paid when due by Seller, except only that (i) any brokerage commissions payable by reason of New Leases (as defined in Article 22 hereof) permitted pursuant to Article 22 hereof, which are made or entered into on or after the date of this Contract, shall be apportioned between the parties based upon the rent collectible by each party and shall be payable by Purchaser and (ii) Seller is and Purchaser shall apportion any brokerage commissions payable by reason of renewals or extensions of Existing Leases or options to lease additional space exercised after the Closing pursuant to the applicable Existing Lease provisions based upon the period commencing on the rent commencement date of any such renewal or extension and ending on the expiration date of any such renewal or extension. From and after the date hereof until the Closing, Purchaser shall be the sole legal leasing broker for the Premises and beneficial owner shall have the right to charge leasing commissions at standard industry rates.
(g) To the best of Seller's knowledge, all construction reimbursements, tenant improvement allowances and similar payments to be made by the landlord under the Existing Leases have been paid in full or will be paid in full prior to the Closing.
(h) To the best of Seller's knowledge, the description of the Personal Property is accurate as of the date hereof and will be accurate as of the date of the Closing, subject to disposal and/or replacement of such property in the ordinary course of business.
(i) There is no litigation pending or, to the best knowledge of Seller, threatened against Seller, the Premises or the transactions contemplated by this Contract. To the best of Seller's knowledge, there is no proceeding (zoning or otherwise) or governmental investigation pending or threatened against or relating to Seller, the Premises or the transactions contemplated by this Contract, nor, to the best knowledge of Seller, is there any basis for such action.
(j) Seller has not received written notice of any default or breach by Seller under any of the covenants, conditions, restrictions, rights of way or easements affecting the Premises or any portion thereof; to the best knowledge of Seller, no such default or breach now exists; and, to the best knowledge of Seller, no event has occurred and is continuing which with notice and/or the passage of time would constitute a default thereunder.
(k) No work has been performed or is in progress at, and no materials have been furnished to, the Premises or any portion thereof for which Seller is responsible and which, though not at present the subject of, might give rise to, mechanic's, materialmen's or other liens against the Premises or any portion thereof.
(l) To the best knowledge of Seller, there are no outstanding requirements or recommendations by any insurance company that issued a policy with respect to the Premises or any part thereof, or by any Board of Fire Underwriters or other body exercising similar functions, requiring or recommending any repairs or work to be done on or to the Premises.
(m) This Contract has been duly and validly authorized, executed and delivered by Seller and Seller has full power and authority to consummate the transactions contemplated hereby, and the Closing will not constitute a breach or violation of any contract or instrument to which Seller is a party, or by which it or any of its assets are subject or bound, or any judgment, order, writ, injunction or decree issued against or imposed upon it, or will result in a violation of any applicable law, order, rule or regulation of any governmental authority.
(n) No person or entity has an option, right of first refusal or other preferential right to purchase the Premises or any part thereof.
(o) No Existing Tenant has executed or delivered to Seller any promissory notes or other instruments pursuant to which an Existing Tenant is indebted to its landlord, and Seller does not own and is not holding any such notes or other instruments.
(p) True and complete copies of all Service Contracts and any and all other instruments, documents and agreements recited in this Contract (other than documents to be executed and delivered at the Closing), and all amendments to all of the foregoing, have been delivered to Purchaser.
(q) Seller (i) is a New York limited partnership validly existing in the State of New York, (ii) owns the fee interest in the Premises and (iii) has good and marketable title to the Transferred Rights, free and clear of any and all liens, claims, security interests, participations, or encumbrances of any kind or nature whatsoever and will transfer to Purchaser such good and marketable title, free and clear of liens and encumbrances of any kind;Personal Property.
(br) To the best of Seller's knowledge, no payment fact or condition exists which would result in the termination or impairment of access to the Premises or the discontinuation of necessary sewer, water, electric, gas, telephone or other distribution utilities or services to the Premises.
(s) To the best of Seller's knowledge, Seller has been received by or on behalf of Seller in full or partial satisfaction filed with all of the Transferred Rights;applicable governmental authorities having jurisdiction over the Premises, all statements, affidavits, documents and other instruments with respect to the Premises and the operation and use thereof that are required to be filed by applicable laws, rules, regulations, and ordinances.
(ct) Seller has not previously sold, No air rights or development rights appurtenant to the Premises have been conveyed, transferred, assignedgranted or licensed to any third party.
(u) To the best of Seller's knowledge, participatedneither Seller, pledged nor to Seller's knowledge, any other person has ever caused or permitted any Hazardous Substance (hereinafter defined) to be placed, located, spilled or otherwise encumbered disposed of on under or at the Transferred RightsPremises or any part thereof in violation of any Environmental Laws (hereinafter defined), excluding materials used in whole or in part, to any party (or agreed to do any the maintenance and operation of the foregoing);
(d) Seller has not engaged in any acts, conduct or omissions, or had any relationship with the Debtors or its affiliates, that would reasonably result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other similarly situated creditors of the Debtors;
(e) Seller has not received any written notice, other than those publicly available in the Cases (if any) or otherwise, that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind;
(f) Seller is not an “affiliate” or “insider” within the meaning of Sections 101(2) and 101(31), respectively, of the Bankruptcy Code and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Cases;
(g) Seller is not, and never has been, “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code or within the meaning of Section 101(32) of the Bankruptcy Code;
(h) Seller has no obligation or liability to the Debtors, and has not effected and will not effect any netting, setoff or recoupment against the Debtors in respect of the Transferred Rights; and
(i) either (i) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans (as defined below) or (ii) the transaction exemption set forth in one or more U.S. Department of Labor Prohibited Transaction Exemptions (“PTEs”)Premises, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers)cleaning materials. There is not now pending, PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers) is applicable with respect to the sale of the Transferred Rights. “Benefit Plan” means an “employee benefit plan” as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it (“ERISA”) and subject to Title I thereof, a “plan” as defined in Section 4975 of the United States Internal Revenue Code or nor has Seller received any Entity whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the United States Internal Revenue Code) the assets notice of any such “employee benefit plan” threatened, investigation, action or “planproceeding against Seller or the Premises seeking to enforce any right or remedy under any Environmental Laws. "Hazardous Substance" shall mean any material or substance governed or regulated or defined under any local, state or Federal law, rule ordinance, code, regulation, order or decree regulating, relating to or imposing liability or standards of conduct with regard to hazardous, toxic or dangerous waste, substances or materials or regulating or governing air or water quality, the environment or environmental, health safety or hygiene ("Environmental Laws").”
Appears in 1 contract
Additional Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser, and to Purchaser’s successors and assigns, as of the Effective Date, that:
: (a) Seller is the sole legal and beneficial owner of and has good and marketable title to the Transferred Rights, free and clear of any and all liens, claims, security interests, participations, or encumbrances of any kind or nature whatsoever and will transfer to Purchaser such good and marketable title, free and clear of liens and encumbrances of any kind;
; (b) no payment or other distribution has been received by or on behalf of Seller in full or partial satisfaction of the Transferred Rights;
; (c) Seller has not previously sold, conveyed, transferred, assigned, participated, pledged or otherwise encumbered the Transferred Rights, in whole or in part, to any party (or agreed to do any of the foregoing);
; (d) Seller has not engaged in any acts, conduct or omissions, or had any relationship with the Debtors or its affiliates, that would reasonably result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other similarly situated creditors of the Debtors;
; (e) Seller has not received any written notice, other than those publicly available in the Cases (if any) or otherwise, that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind;
; (f) Seller is not an “affiliate” or “insider” within the meaning of Sections 101(2) and 101(31), respectively, of the Bankruptcy Code and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Cases;
(g) Seller is not, and never has been, “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code or within the meaning of Section 101(32) of the Bankruptcy Code;
(h) Seller has no obligation or liability to the Debtors, and has not effected and will not effect any netting, setoff or recoupment against the Debtors in respect of the Transferred Rights; and
(i) either (i) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans (as defined below) or (ii) the transaction exemption set forth in one or more U.S. Department of Labor Prohibited Transaction Exemptions (“PTEs”), such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers) is applicable with respect to the sale of the Transferred Rights. “Benefit Plan” means an “employee benefit plan” as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it (“ERISA”) and subject to Title I thereof, a “plan” as defined in Section 4975 of the United States Internal Revenue Code or any Entity whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the United States Internal Revenue Code) the assets of any such “employee benefit plan” or “plan.”4
Appears in 1 contract
Samples: Assignment of Claims Agreement
