Common use of Covenants and Agreements of Seller and Buyer Clause in Contracts

Covenants and Agreements of Seller and Buyer. Seller and Buyer covenant to each other as follows: (a) Each party shall use its reasonable best efforts to cause the conditions precedent set forth in Article 7, applicable to such party, to be fulfilled and satisfied as soon as practicable by and in any event prior to the Closing. (b) With respect to documents required for Closing: (i) Seller shall commence the preparation of drafts of all applicable schedules and exhibits to the form of Assignment and Xxxx of Sale attached hereto as Exhibit B (the “ Assignment”) and shall begin delivering such draft forms to Buyer reasonably promptly so that Buyer can review and agree to such documents between the time of execution of the Agreement and Closing. Seller and Buyer shall jointly prepare a description of major equipment, facilities and fixtures included in the Assets, such description to be appended to a xxxx of sale delivered by Seller to Buyer at Closing. (ii) No later than five (5) days prior to Closing, Seller shall present a proposed preliminary settlement statement (the “Preliminary Settlement Statement”) showing its preliminary calculation of the Cash Purchase Price adjusted in accordance with Article 2 of this Agreement (the “Preliminary Purchase Price”). Buyer shall advise Seller of any proposed changes or objections to the Preliminary Settlement Statement no less than two (2) days prior to Closing and the parties shall thereafter diligently attempt to resolve all issues in regard to the Preliminary Settlement Statement on or before Closing. If such matters cannot be resolved as of the Closing Date, the Cash Purchase Price paid to Seller on the Closing Date shall be the average of the Preliminary Purchase Price amounts proposed by Seller and Buyer and the matter shall be resolved in connection with the Final Settlement Statement pursuant to Section 9.1.(iii) (c) Buyer shall be solely responsible for promptly recording the Assignments and any other documents related to the conveyance of the Assets, and shall promptly furnish Seller with the recording information. Buyer shall be responsible for all filings with state, tribal and federal agencies for change of operator, and shall promptly provide Seller with the original approved copies of all such filings, or confirmation thereof. All governmental office recording and filing fees shall be paid by Buyer and where paid by Seller, reimbursed by Buyer promptly after receipt of an invoice. Buyer shall pay all sales taxes, if any, arising from the transactions contemplated by this Agreement.

Covenants and Agreements of Seller and Buyer. Seller and Buyer covenant to each other as follows: (a) Each party From the date hereof to the Closing Date or earlier termination of this Agreement, Seller shall use its reasonable best efforts not do, suffer or permit, or agree to cause do, any of the conditions precedent set forth following: i. enter into any transaction, contract or agreement in Article 7respect to or affecting any of the Property after Closing; ii. sell, applicable to such party, to be fulfilled and satisfied as soon as practicable by and encumber or grant any interest in any event prior of the Property, or any part thereof, which will prevent Seller’s full performance of Seller’s obligations hereunder except for residential leases in the ordinary course of business, as provided in Section 12.(b)(ii) hereof; and iii. fail to operate each of the ClosingPremises in compliance with all applicable governmental laws, statutes, regulations, ordinances and codes; fail to give Buyer prompt written notice of any Hazardous or Toxic Material or violation of any Environmental Law of which it has received notice of or has actual knowledge of, on or at any of the Premises of which Seller is aware or should, with the exercise of reasonable diligence, be aware; enter into any easement, covenant, restriction or right of way for or burdening any of the Premises; or modify, terminate or extend any Service Contract. (b) With Between the date hereof and the Closing Date, Seller shall do the following: i. maintain all current insurance in all current amounts on all of the Property; ii. continue to manage, lease, operate, repair and maintain all of the Property in a manner consistent with the Seller’s current standards and practices; continue to perform all obligations of the landlord arising under the Leases and may continue to negotiate leases and enter into a new Lease or renew an existing Lease for any unit space on its current Lease form as delivered to and approved by Buyer, provided such lease renewal or new Lease so entered into by Seller shall be on a monthly rental and on other terms approved by the Buyer, and Seller consults with Buyer with respect to documents required all pricing and lease related decisions related to the Premises; Seller’s obligations under this Subsection ii. shall include, but not be limited to, actively marketing the lease-up of all units for Closing:the 2010-2011 school term, continue to maintain the units at each of the Premises and respond to tenant requests regarding such maintenance, repairs and refurbishments to the units at each of the Premises and to promptly repair, refurbish and restore units at each of the Premises as such units become vacant so that such vacant units are promptly restored to a “rentable” condition; (i) iii. subject to Section 7. hereof, Seller shall commence repair, at its sole cost and expense, all damage to each of the preparation of drafts of all applicable schedules Premises occurring after the Due Diligence Period and exhibits on or prior to the form Closing Date except to the extent caused by Buyer or its agents; any such repairs and any capital improvements to each of Assignment the Premises shall be completed, lien free and Xxxx at the sole cost and expense of Sale attached hereto as Exhibit B (Seller, in a manner reasonably satisfactory to Buyer; if Seller is currently undertaking any capital improvement at the “ Assignment”) Premises or commences any such capital improvement prior to the Closing Date, such capital improvement must be completed, at Seller’s sole cost and expense, to the reasonable satisfaction of Buyer, lien free, prior to the Closing Date; and iv. in the event of any litigation filed between the date hereof and the Closing Date by or against Seller or any of the Premises in connection with the Leases, Seller shall retain complete control of such litigation, shall have the right to select and direct counsel regarding same, and the right to enter into any settlement agreement deemed appropriate by Seller. Seller shall not settle any litigation with any tenant in a manner that will adversely affect Buyer or any of the Premises after the Closing Date, including, without limitation, abating the rent or otherwise agreeing to modify the terms of the current Leases. From and after the Closing Date, should any such litigation remain pending, or thereafter be filed or commenced for events occurring prior to Closing Date, Seller shall prosecute or defend such action, shall be totally responsible for all costs and judgments incurred in connection therewith, and shall begin delivering be entitled to all judgments, awards and costs which Seller may obtain by way of successful prosecution or defense of such draft forms action, by way of prevailing upon any counterclaim filed in connection therewith, or by way of settlement, except for rent for periods subsequent to Buyer reasonably promptly so that Buyer can review and agree to such documents between the time of execution of the Agreement and Closing. Seller agrees not to enter into any settlement of litigation that continues after Closing without prior written consent of Buyer that shall not be unreasonably withheld. It is the intention of both Buyer and Seller that the foregoing provision shall apply solely to litigation filed after the date hereof, Seller having, by its execution hereof, agreed with Buyer shall jointly prepare a description that, to the best of major equipmentSeller’s knowledge, facilities no such litigation, whether by or against Seller, is presently pending or contemplated except as expressly provided in Exhibit K hereto. Regarding the foregoing litigation, by its execution hereof, Buyer and fixtures included in Seller expressly agree as follows: 1. Other than the Assetslitigation, such description to claims, suits and charges which may be appended to a xxxx of sale delivered by Seller to Buyer at Closing. (ii) No later than five (5) days pending on the Closing Date, or which may arise after Closing for events occurring or accruing prior to Closing, which shall be the sole responsibility of Seller, Buyer shall, at Closing, assume responsibility for all litigation, claims, suits and charges (other than by litigation between Seller and Buyer) which may in the future be filed in connection with the Premises. 2. Buyer’s obligation to close the transaction as provided herein shall present a proposed preliminary settlement statement (the “Preliminary Settlement Statement”) showing its preliminary calculation be and remain unaffected by any pending tenant litigation or disputes so long as such tenant litigation or dispute does not, with respect to each of the Cash Purchase Price adjusted Premises, involve a claim or claims in accordance with Article 2 excess of this Agreement $50,000.00 for any one of the Premises or $125,000.00 in the aggregate for all of the Premises, or involve or include, in the aggregate, five percent (5%) or more of the “Preliminary Purchase Price”)total units at any of the Premises. Buyer shall advise Seller of any proposed changes or objections to the Preliminary Settlement Statement no less than two (2) days prior to Closing and the parties shall thereafter diligently attempt to resolve all issues in regard to the Preliminary Settlement Statement If, on or before Closing. If such matters cannot be resolved as of the Closing Date, with respect to any of the Cash Purchase Price paid Premises, such tenant litigation involves or includes, claims in excess of $50,000.00 for any one of the Premises or $125,000.00 in the aggregate for all of the Premises, or involve or include, in the aggregate, five percent (5%) or more of the total units at any of the Premises, then the Buyer, at its option, may elect to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit, if any, to Buyer or (ii) waive the objection and proceed to Closing in accordance with the terms and provisions hereof. All pending litigation is listed in Exhibit K. Seller on shall promptly notify Buyer of any changes to this list. For purposes of this Agreement, any litigation, claim, suit or action in excess of the threshold amounts specified above or in Section 10.(j) hereof, either singly or collectively, shall be deemed a “Material Litigation”. 3. Seller agrees to indemnify, defend and hold Buyer harmless from and against any litigation, claim, suit, action, charge, cost or expense, including reasonable attorneys’ fees, which is currently pending, was pending or which arises either before or after Closing as a result of any act, omission, condition or event occurring prior to the Closing Date shall be Date. Buyer agrees to indemnify, defend and hold Seller harmless from and against any litigation, claim, suit, action, charge, cost or expense, including reasonable attorneys’ fees, which arises as a result of any act, omission, condition or event occurring on or after the average of the Preliminary Purchase Price amounts proposed by Seller and Buyer and the matter shall be resolved in connection with the Final Settlement Statement pursuant to Section 9.1.(iii)Closing Date. (c) Buyer shall be solely responsible for promptly recording the Assignments covenants and any other documents agrees, at no cost to Buyer, to cooperate with Seller and Seller’s accountants and independent auditors to provide reasonable and necessary access to financial records related to the conveyance of Premises, including, but not limited to any financial statements and supporting records. This provision shall survive the Assets, and shall promptly furnish Seller with the recording informationClosing for one (1) year. Buyer All such access shall be responsible for all filings with state, tribal and federal agencies for change of operator, and shall promptly provide on reasonable prior written notice from Seller with the original approved copies of all such filings, or confirmation thereof. All governmental office recording and filing fees shall be paid by to Buyer and where paid by Seller, reimbursed by at such reasonable times and days as Buyer promptly after receipt of an invoice. Buyer shall pay all sales taxes, if any, arising from the transactions contemplated by this Agreementmay determine.

Covenants and Agreements of Seller and Buyer. Seller 6.1 Actions Pending Closing. From the date hereof to the Closing, except as otherwise contemplated by this Agreement, SELLER and Buyer BUYER covenant to each other and agree as follows: (a) Each party shall use BUYER will be operated in the usual and ordinary manner consistent with past practices and will preserve its reasonable best efforts present business organization intact, and preserve its present relationships with persons having business dealings with it and to take such actions as are necessary and to cause the conditions precedent set forth in Article 7, applicable transition of such business operations and employee and other relationships to such party, to be fulfilled and satisfied as soon as practicable by and in any event prior to the Closing. (b) With respect to documents required for Closing: (i) Seller shall commence the preparation of drafts of all applicable schedules and exhibits to the form of Assignment and Xxxx of Sale attached hereto as Exhibit B (the “ Assignment”) and shall begin delivering such draft forms to Buyer reasonably promptly so that Buyer can review and agree to such documents between the time of execution of the Agreement and Closing. Seller and Buyer shall jointly prepare a description of major equipment, facilities and fixtures included in the Assets, such description to be appended to a xxxx of sale delivered by Seller to Buyer at Closing. (ii) No later than five (5) days prior to Closing, Seller shall present a proposed preliminary settlement statement (the “Preliminary Settlement Statement”) showing its preliminary calculation of the Cash Purchase Price adjusted in accordance with Article 2 of this Agreement (the “Preliminary Purchase Price”). Buyer shall advise Seller of any proposed changes or objections to the Preliminary Settlement Statement no less than two (2) days prior to Closing and the parties shall thereafter diligently attempt to resolve all issues in regard to the Preliminary Settlement Statement on or before Closing. If such matters cannot be resolved BUYER as of the Closing Date, the Cash Purchase Price paid to Seller on the Closing Date shall be the average of the Preliminary Purchase Price amounts proposed by Seller and Buyer and the matter shall be resolved in connection with the Final Settlement Statement pursuant to Section 9.1.(iii) (c) Buyer shall be solely responsible for promptly recording the Assignments and any other documents related to the conveyance of the Assets, and shall promptly furnish Seller with the recording information. Buyer shall be responsible for all filings with state, tribal and federal agencies for change of operator, and shall promptly provide Seller with the original approved copies of all such filings, or confirmation thereof. All governmental office recording and filing fees shall be paid by Buyer and where paid by Seller, reimbursed by Buyer promptly after receipt of an invoice. Buyer shall pay all sales taxes, if any, arising from the transactions as contemplated by this Agreement. (b) All assets of BUYER will be used, operated, maintained and repaired in the usual and ordinary course of BUYER's business consistent with past practices. (c) BUYER will not permit any insurance policy naming it as a beneficiary or a loss payable payee covering any of its assets or its operations to be canceled, terminated or modified or any of the coverage thereunder to lapse unless simultaneously with such termination or cancellation. (d) BUYER will timely file (including all applicable extensions) all tax returns and reports required to be filed prior to Closing with any federal, state or local governments or governmental agencies. (e) BUYER shall not make or institute any methods of collection, credit, billing, management, accounting or operation which are not in the usual and customary course of its business, consistent with BUYER's past practices. (f) SELLER shall not transfer, pledge, create or permit to exist any lien, claim or other encumbrance against any of the Stock nor issue any options, warrants or other rights with respect thereto. (g) From the date hereof, through and including the Closing Date, BUYER shall not amend in any material respect its Articles of Incorporation or By-laws. (h) Buyer will pay all claims by certain of Seller's franchisees relating to Buyer's business activities in that franchisee's territory, occurring prior to Closing. Subsequent to the execution of this Agreement, Buyer will have no obligation to franchisees with respect to future business.

Covenants and Agreements of Seller and Buyer. Seller and Buyer covenant to each other as follows: (a) Each party From the date hereof to the Closing Date or earlier termination of this Agreement, Seller shall use its reasonable best efforts not do, suffer or permit, or agree to cause do, any of the conditions precedent set forth following: i. enter into any transaction, contract or agreement in Article 7respect to or affecting any of the Property after Closing; ii. sell, applicable to such party, to be fulfilled and satisfied as soon as practicable by and encumber or grant any interest in any event prior of the Property, or any part thereof, which will prevent Seller’s full performance of Seller’s obligations hereunder except for residential leases in the ordinary course of business, as provided in Section 12.(b)(ii) hereof; and iii. fail to operate each of the ClosingPremises in compliance with all applicable governmental laws, statutes, regulations, ordinances and codes; fail to give Buyer prompt written notice of any Hazardous or Toxic Material or violation of any Environmental Law of which it has received notice of or has actual knowledge of, on or at any of the Premises of which Seller is aware or should, with the exercise of reasonable diligence, be aware; enter into any easement, covenant, restriction or right of way for or burdening any of the Premises; or modify, terminate or extend any Service Contract. (b) With Between the date hereof and the Closing Date, Seller shall do the following: i. maintain all current insurance in all current amounts on all of the Property; ii. continue to manage, lease, operate, repair and maintain all of the Property in a manner consistent with the Seller’s current standards and practices; continue to perform all obligations of the landlord arising under the Leases and may continue to negotiate leases and enter into a new Lease or renew an existing Lease for any unit space on its current Lease form as delivered to and approved by Buyer, provided such lease renewal or new Lease so entered into by Seller shall be on a monthly rental and on other terms approved by the Buyer, and Seller consults with Buyer with respect to documents required for Closing:all pricing and lease related decisions related to the Premises; Seller’s obligations under this Subsection ii. shall include, but not be limited to, actively marketing the lease-up of all units, continue to maintain the units at each of the Premises and respond to tenant requests regarding such maintenance, repairs and refurbishments to the units at each of the Premises and to promptly repair, refurbish and restore units at each of the Premises as such units become vacant so that such vacant units are promptly restored to a “rentable” condition; (i) iii. subject to Section 7. hereof, Seller shall commence repair, at its sole cost and expense, all damage to each of the preparation of drafts of all applicable schedules Premises occurring after the Due Diligence Period and exhibits on or prior to the form Closing Date except to the extent caused by Buyer or its agents; any such repairs and any capital improvements to each of Assignment the Premises shall be completed, lien free and Xxxx at the sole cost and expense of Sale attached hereto as Exhibit B (Seller, in a manner reasonably satisfactory to Buyer; if Seller is currently undertaking any capital improvement at the “ Assignment”) Premises or commences any such capital improvement prior to the Closing Date, such capital improvement must be completed, at Seller’s sole cost and expense, to the reasonable satisfaction of Buyer, lien free, prior to the Closing Date; and iv. in the event of any litigation filed between the date hereof and the Closing Date by or against Seller or any of the Premises in connection with the Leases, Seller shall retain complete control of such litigation, shall have the right to select and direct counsel regarding same, and the right to enter into any settlement agreement deemed appropriate by Seller. Seller shall not settle any litigation with any tenant in a manner that will adversely affect Buyer or any of the Premises after the Closing Date, including, without limitation, abating the rent or otherwise agreeing to modify the terms of the current Leases. From and after the Closing Date, should any such litigation remain pending, or thereafter be filed or commenced for events occurring prior to Closing Date, Seller shall prosecute or defend such action, shall be totally responsible for all costs and judgments incurred in connection therewith, and shall begin delivering be entitled to all judgments, awards and costs which Seller may obtain by way of successful prosecution or defense of such draft forms action, by way of prevailing upon any counterclaim filed in connection therewith, or by way of settlement, except for rent for periods subsequent to Buyer reasonably promptly so that Buyer can review and agree to such documents between the time of execution of the Agreement and Closing. Seller agrees not to enter into any settlement of litigation that continues after Closing without prior written consent of Buyer that shall not be unreasonably withheld. It is the intention of both Buyer and Seller that the foregoing provision shall apply solely to litigation filed after the date hereof, Seller having, by its execution hereof, agreed with Buyer shall jointly prepare a description that, to the best of major equipmentSeller’s knowledge, facilities no such litigation, whether by or against Seller, is presently pending or contemplated except as expressly provided in Exhibit K hereto. Regarding the foregoing litigation, by its execution hereof, Buyer and fixtures included in Seller expressly agree as follows: 1. Other than the Assetslitigation, such description to claims, suits and charges which may be appended to a xxxx of sale delivered by Seller to Buyer at Closing. (ii) No later than five (5) days pending on the Closing Date, or which may arise after Closing for events occurring or accruing prior to Closing, which shall be the sole responsibility of Seller, Buyer shall, at Closing, assume responsibility for all litigation, claims, suits and charges (other than by litigation between Seller and Buyer) which may in the future be filed in connection with the Premises. 2. Buyer’s obligation to close the transaction as provided herein shall present a proposed preliminary settlement statement (the “Preliminary Settlement Statement”) showing its preliminary calculation be and remain unaffected by any pending tenant litigation or disputes so long as such tenant litigation or dispute does not, with respect to each of the Cash Purchase Price adjusted Premises, involve a claim or claims in accordance with Article 2 excess of this Agreement $50,000.00 for any one of the Premises or $125,000.00 in the aggregate for all of the Premises, or involve or include, in the aggregate, five percent (5%) or more of the “Preliminary Purchase Price”)total units at any of the Premises. Buyer shall advise Seller of any proposed changes or objections to the Preliminary Settlement Statement no less than two (2) days prior to Closing and the parties shall thereafter diligently attempt to resolve all issues in regard to the Preliminary Settlement Statement If, on or before Closing. If such matters cannot be resolved as of the Closing Date, with respect to any of the Cash Purchase Price paid Premises, such tenant litigation involves or includes, claims in excess of $50,000.00 for any one of the Premises or $125,000.00 in the aggregate for all of the Premises, or involve or include, in the aggregate, five percent (5%) or more of the total units at any of the Premises, then the Buyer, at its option, may elect to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit, if any, to Buyer or (ii) waive the objection and proceed to Closing in accordance with the terms and provisions hereof. All pending litigation is listed in Exhibit K. Seller on shall promptly notify Buyer of any changes to this list. For purposes of this Agreement, any litigation, claim, suit or action in excess of the threshold amounts specified above or in Section 10.(j) hereof, either singly or collectively, shall be deemed a “Material Litigation”. 3. Seller agrees to indemnify, defend and hold Buyer harmless from and against any litigation, claim, suit, action, charge, cost or expense, including reasonable attorneys’ fees, which is currently pending, was pending or which arises either before or after Closing as a result of any act, omission, condition or event occurring prior to the Closing Date shall be Date. Buyer agrees to indemnify, defend and hold Seller harmless from and against any litigation, claim, suit, action, charge, cost or expense, including reasonable attorneys’ fees, which arises as a result of any act, omission, condition or event occurring on or after the average of the Preliminary Purchase Price amounts proposed by Seller and Buyer and the matter shall be resolved in connection with the Final Settlement Statement pursuant to Section 9.1.(iii)Closing Date. (c) Buyer shall be solely responsible for promptly recording the Assignments covenants and any other documents agrees, at no cost to Buyer, to cooperate with Seller and Seller’s accountants and independent auditors to provide reasonable and necessary access to financial records related to the conveyance of Premises, including, but not limited to any financial statements and supporting records. This provision shall survive the Assets, and shall promptly furnish Seller with the recording informationClosing for one (1) year. Buyer All such access shall be responsible for all filings with state, tribal and federal agencies for change of operator, and shall promptly provide on reasonable prior written notice from Seller with the original approved copies of all such filings, or confirmation thereof. All governmental office recording and filing fees shall be paid by to Buyer and where paid by Seller, reimbursed by at such reasonable times and days as Buyer promptly after receipt of an invoice. Buyer shall pay all sales taxes, if any, arising from the transactions contemplated by this Agreementmay determine.