Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property: (a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound; (b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property; (c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease; (d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations; (e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation; (f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2; (g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated; (h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing; (i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property; (j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.), Purchase and Sale Agreement (American Realty Capital Properties, Inc.), Purchase and Sale Agreement (American Realty Capital Properties, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease (however, it is acknowledged and agreed upon by Buyer that Seller may enter into contracts and agreements relating to the post closing covenants, including but not limited to, the completion of any Punch-List items, as described in Section 17 herein);
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies copy of the Leases; (ii) the Leases are in full force and effect and there is no default thereunderthereunder (except for the completion of any Punch-List Items and/or repairs as may be required as part of the post closing covenants described in Section 17 herein); (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereofthereof as expressly provided to Tenant in the Lease; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each the Property is as set forth on Exhibit A2A1;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than those contemplated in the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(ji) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.), Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or or, except as set forth on Exhibit L attached hereto, tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any leases, subleases, contracts, subcontracts licenses or other agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLeases and the agreements referenced on Exhibit J annexed hereto;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of that any such violationscondition at the Property constitutes a violation, and the Property shall be delivered free from all known violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunderthereunder except as may be disclosed on the Rent Roll; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto (as the same shall be updated at Closing); (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller except as disclosed on the Rent Roll; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Tenant has no right to terminate the Lease or to otherwise shorten the initial term of the Lease, except with respect to certain casualty and condemnation events or as otherwise expressly stated in the Lease; (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof; and (xii) attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyerlisted on Exhibit M attached hereto and made a part hereof, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Except as set forth in the environmental reports listed on Exhibit M attached hereto, Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(l) There presently exists no unrestored casualty or condemnation affecting the Property; and
(m) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder. As used herein, the term “knowledge” or “best knowledge” of Seller or similar terms shall mean the actual knowledge of Bxxxx Xxxxxx and Lxxxx XxXxxxx, Seller’s principal property manager with day to day responsibility for the Property. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer SELLER represents and warrants to enter into BUYER, and this Agreement is made in reliance on, each and to consummate the sale and purchase all of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollowing:
(a) Seller SELLER is a California corporation, duly organized (or formed), incorporated and validly existing and in good standing under the laws of its state of organization, and to the extent required by California law, the State in which the Property is located. Seller .
(b) SELLER has the full power and authority to execute and deliver enter into this Agreement and all closing documents to nothing set forth herein or any obligation undertaken by SELLER herein shall be executed by Seller, and to perform all violative of Seller’s obligations hereunder and thereunder. Neither any law or statute.
(c) From the execution and delivery date of this Agreement and all closing documents to be executed by Sellercontinuing through and as of Closing, nor the performance none of the obligations of Seller hereunder equipment identified in Exhibit "A" is subject to any liens or thereunder will result in the violation encumbrances of any kind or nature whether consensual or by operation of law or any provision and SELLER has good and marketable title to each of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;said assets.
(d) Except for violations cured or remedied on SELLER is not now a party to any litigation whether in a court, arbitration, tribunal or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation agency. SELLER has previously been a party to litigation but said litigation has been terminated and SELLER has no judgment against it of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Leasekind. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are trueFurther, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller SELLER has no outstanding obligation to provide Tenant with an allowance anyone as the result of said litigation or any other litigation.
(e) SELLER does not have any claims or demands asserted or made against it and knows of no basis on which any claim or demand may be made against it. As the sole exception to constructthe foregoing representation, or SELLER has disclosed to construct at BUYER the existence of a potential claim against it by the Xxxxxxx family. SELLER has represented to BUYER that, if this claim is asserted, the claim will be covered by SELLER's existing insurance policy and the limits of SELLER's existing insurance policy are sufficient to cover the claim (including all defense costs) in its own expense, entirety.
(f) SELLER does not have any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;judgments entered against it.
(g) There are no occupancy rightsSELLER has duly filed all federal, leases state and local tax returns and documents required to be filed and has paid all federal, state and local taxes on a timely basis. SELLER has not received any delinquency or tenancies affecting the Property other than the Lease. Neither this Agreement assessment notices from any taxing authority and neither SELLER nor the consummation any property of the transactions contemplated hereby SELLER is subject to any first right of refusal state or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;federal tax liens.
(h) The transactions contemplated hereby either (i) BUYER will not constitute a sale enjoy ownership of all or substantially all the those assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets identified in Exhibit "A" free and clear of any Sellerclaims, Seller shall provide to Buyer at Closing an excise tax lien waiver liens or such other reasonably obtainable instruments evidencing compliance with laws demands of SELLER or payment SELLER's creditors. SELLER hereby indemnifies and holds BUYER harmless against any claim, demand, cause of taxes to the extent required by the law action, judgment, damages or costs (including reasonable attorney's fees) arising out of any breach or threatened breach of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct aforesaid warranties and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearrepresentations.
Appears in 1 contract
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to Date, which shall survive the Propertyclosing for a period of one (1) year:
(a) Each Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to (if different than the extent required by law, state of organization) the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller, alone, has, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Real Property and Improvements as a single contiguous parcel, free and clear of all mortgages, liens, claims, judgments, encumbrances, ground rents, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, rights of way, easements, encroachments and any other matters affecting title, except only the Permitted Exceptions;
(c) Seller has not received any written notice of any current or pending litigation, action, proceeding (including condemnation proceeding or proceeding), tax appeals affecting Seller (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property and Improvements) or environmental investigations against Seller, the Property or in connection with the business operated at the Real Property and Seller does not have any knowledge of any pending litigation or threatened litigation, action, proceeding, tax appeals or environmental investigations against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(cd) Seller has not entered into any contracts, subcontracts or agreements affecting None of the Property which Contracts will be binding upon Buyer after the Closing other than the LeaseClosing;
(de) Except for defaults cured on or before the date hereof, Seller has not received any written notice of default under the terms of any of the Contracts;
(f) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law Laws applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property that will survive Closing other than the LeaseMaster Lease and the Operating Subleases. Neither this Agreement nor All parties having a right or option to purchase the consummation Property from Buyer have waived all of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart such rights. Apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminatedremain in effect;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all To the assets actual knowledge of Seller, the Property is now and has at all times been in compliance in all material respects with all Laws. Seller has not received any written notice that the Property or (ii) if such transaction does constitute a sale of all or substantially all the assets of Seller’s use and occupancy thereof violates any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the ClosingLaws;
(i) To Seller is not a “foreign person” under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and upon consummation of the transaction contemplated hereby, Buyer will not be required by FIRPTA to withhold from the Purchase Price any withholding tax;
(j) There are no employees of Seller engaged in the operation or maintenance of the Property;
(k) Seller has not initiated or participated in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(l) During the period of Seller’s knowledge, except as set forth in ownership of the environmental reports previously delivered by Seller to BuyerReal Property and Improvements, no hazardous substances Hazardous Substances have been generated, stored, released, or disposed of on or about the Real Property or Improvements in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”), and to Seller’s knowledge, prior to Seller’s ownership of the Real Property and Improvements, no Hazardous Substances have been generated, stored, released, or disposed of on or about the Real Property or Improvements in violation of any Environmental Laws. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of As used in this SubsectionAgreement, the term “hazardous substancesHazardous Substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s best knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any leases, subleases, contracts, subcontracts licenses or other agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and the agreements referenced on Exhibit J annexed hereto;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the current total scheduled annual base rent for each Property under the Lease is as set forth on Exhibit A2$422,076.00 per annum;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the applicable Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Ground Lease and the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) With respect to the Fee Simple Property Seller has fee simple title to the Property which at the Closing will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s actual knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one six (16) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) to Seller’s knowledge, the Leases are in full force and effect and and, to Seller’s knowledge without investigation, there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(gf) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(hg) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jh) Exhibit I J attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year. In the event that Seller becomes aware that any representation contained in this Section 11 is no longer true, then Seller shall immediately give Buyer notice of such inaccurate representation.
Appears in 1 contract
Samples: Assignment and Assumption of Purchase Agreement (Cole Credit Property Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to Date, which shall survive the Property:Closing for a period of one (1) year.
(a) Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to (if different than the extent required by law, state of organization) the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
; (b) Seller, alone, has, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Real Property as a single contiguous parcel, free and clear of all mortgages, deeds of trust, liens, claims, judgments, encumbrances, ground rents, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, rights of way, easements, encroachments and any other matters affecting title, except only the Permitted Exceptions; (c) Except as otherwise provided on Schedule 11(c), Seller has not received any written notice of any threatened, current or pending litigation, action, proceeding (including municipal, health, administrative, or condemnation proceeding or proceedings), tax appeals affecting (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Seller, any tenant or an Operating Subtenant, the Property or in connection with the business operated at the Real Property. Notwithstanding any provision in this Agreement to the contrary, the disclosure of current or pending litigation shall in no way release Seller or the Property current operators of the Premises from responsibility for any such claims, and Seller does not Buyer shall in no way be deemed to have assumed responsibility for any knowledge such claims, either by virtue of any pending litigation or tax appeals against Seller receipt of such notice or the Propertyoccurrence of the Closing; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
and (d) Except for violations cured Permanent certificates of occupancy and all other licenses, permits, authorizations, consents, approvals and other grants of authority required by all governmental or remedied on or before quasi-governmental authorities having jurisdiction, including but not limited to Regulatory Approvals by all applicable Health Care Regulatory Agency and Third Party Payor, and the date hereof, Seller has not received any written notice from requisite certificates of the local board of fire underwriters (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.body exercising similar
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents Closing Documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents Closing Documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller is not a party to and does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations; and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the LeaseExceptions. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease, which will be terminated pursuant to the terms of the Lease Termination Agreement at Closing. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ig) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property (i) in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from ) or (nor delivered any notice toii) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepagewhich would require remediation. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. , including petroleum and its byproducts;
(h) Seller is not a party to any voluntary or involuntary proceedings under any applicable laws relating to the insolvency, bankruptcy, moratorium or other laws affecting creditors rights to the extent that such laws may be applicable to Seller;
(i) To Seller’s knowledge, there are is no underground storage tanks located on tangible Personal Property owned by Seller at the Property, and Seller is not a party to any service contracts for the operation and maintenance of the Property;
(j) Exhibit I attached hereto To Seller’s knowledge, Seller has received no written notice of any special assessments for public or private improvements by a public body, whether municipal, county or state imposed, affecting any of the Real Property, which are now or hereafter payable;
(k) To Seller’s knowledge, all Due Diligence Materials delivered or made available to Buyer are complete, accurate, true and correct in all material respects; and
(l) As used in this Agreement, the words “Seller's knowledge” or words of similar import shall be deemed to mean, and shall be limited to, the actual (as distinguished from implied, imputed or constructive) knowledge of Akomea Xxxx-Xxxxxx, Senior Vice President and Counsel for AR Global Investments, without any duty of inquiry or investigation, and shall not be construed to refer to the knowledge of any other officer, agent or employee of Seller or any affiliate thereof. Seller represents to Buyer that Akomea Xxxx-Xxxxxx is the Seller’s representative that has the most knowledge about the ownership, operation and management of the Property. To the extent Buyer discovers or acquires actual knowledge prior to the Closing of any inaccuracy in a truerepresentation and warranty of Seller in this Agreement and the Closing occurs, correct such representation and complete listing of all warranties in effect for warranty shall be deemed modified to reflect the Property (the “Warranties”)inaccuracy discovered by Buyer. The Seller’s representations and warranties of Seller set forth in this Agreement shall survive the Closing for a period of one six (16) yearmonths and any action brought on Seller’s representations and warranties shall be commenced within said six (6) month period or shall be forever barred and waived. In no event shall Buyer be entitled to make a claim for breach of such representations or warranties and Seller shall have no liability in connection therewith (i) unless and until the aggregate amount of all such claims exceeds $5,000.00 or (ii) for any amount in excess of $100,000.00 in the aggregate.
Appears in 1 contract
Representations by Seller. For Seller, to the purpose best of inducing Buyer to enter into this Agreement Seller’s actual knowledge, represents and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties warrants to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollows:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its obligations under this Agreement and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding violation of law, zoning or land-use change, condemnation, tax appeals affecting or environmental investigations against Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, legal violation, zoning or land-use change, condemnation, tax appeals appeal or environmental investigations against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Except as may appear of record or as otherwise agreed to pursuant to the terms of this Agreement, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rightsagreements, leases leases, or tenancies other occupancy agreements affecting the Property other than the Lease. Neither this Agreement nor the consummation except as may appear of the transactions contemplated hereby is subject record or those that will be terminated at or prior to any first right of refusal or other purchase right in favor of any other person or entityClosing; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;and
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ie) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one twelve (112) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenant, if any, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations; and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens Liens and encumbrances except for Permitted Exceptions and Seller is is, and will be, the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default or dispute thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The current scheduled annual base rent (the rent “Annual Net Rent”) for each Property the current term of the Lease will be $1,480,510.00 per annum; With respect to the Guaranty, (i) the Guaranty forwarded to Buyer under Section 6(b)(i) is as set forth on Exhibit A2a true, correct and complete copy of the Guaranty; (ii) the Guaranty is in full force and effect and there is no default or dispute thereunder; (iii) the Guaranty is a valid, enforceable guaranty against Guarantor; and (iv) Seller has not entered into any modification, amendment, termination or surrender of the Guaranty;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to BuyerBuyer pursuant to Section 6(b), no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. ;
(i) Seller is not a foreign person (as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder);
(j) To Seller’s knowledge, there all Due Diligence Materials delivered to Buyer pursuant to this Agreement are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing copies thereof in Seller’s possession; and
(k) As used in this Agreement, the words “Seller's knowledge” or words of all warranties similar import shall be deemed to mean, and shall be limited to, the actual (as distinguished from implied, imputed or constructive) knowledge of Xxxxx X. Xxxxxxxxxx, without any duty of inquiry or investigation, and shall not be construed to refer to the knowledge of any other officer, agent or employee of Seller or any affiliate thereof. To the extent Buyer discovers prior to the Closing any inaccuracy in effect for a representation and warranty of Seller in this Agreement and the Property (Closing occurs, such representation and warranty shall be deemed modified to reflect the “Warranties”)inaccuracy discovered by Buyer. The Seller represents and warrants that Xxxxx X. Xxxxxxxxxx, Director of Due Diligence, has the most knowledge in the organization of Seller about the Property. Seller’s representations and warranties of Seller set forth in this Agreement shall survive the Closing for a period of one six (16) yearmonths and any action brought on Seller’s representations and warranties shall be commenced within ninety (90) days after the expiration of such six (6) month period or shall be forever barred and waived. In no event shall Buyer be entitled to make a claim for breach of such representations or warranties and Seller shall have no liability in connection therewith (i) unless and until the aggregate amount of all such claims exceeds $5,000.00 or (ii) for any amount in excess of $100,000.00 in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) ), are true, correct true and complete copies of the Leasescorrect; (ii) the Leases are in full force and effect and and, to the best of Seller’s knowledge, there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There To the best of Seller’s knowledge, there are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;; and
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $222,416.00 per annum with ten percent (10%) increases every five (5) years;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity, other than Tenant under the Lease; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and other contracts or agreements disclosed to Buyer during Due Diligence;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions (and Liens to be discharged at Closing) and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereofthereof which Seller is responsible for paying; (iv) Subject to the Lease terms and any Amendment thereto, Seller has no other outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) Subject to the Lease terms and any Amendment thereto, the total scheduled annual base rent (the “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $1,457,326.00 per annum with two and one half percent (2.5%) increases in years six (6) and eleven (11);
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLease and the Road Dedication Agreement. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, subject to and except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I E attached hereto is will, at the time of closing, be a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one One Hundred and Eighty (1180) yeardays.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, each Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect solely to the PropertyProperty owned by such Seller:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the its Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and and, to the best of Seller's knowledge, there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Seller's Property is as set forth on Exhibit A2;
(gf) There To the best of Seller's knowledge, there are no occupancy rights, leases or tenancies affecting the Property other than those arising under the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from Except for this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Lease and the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the total scheduled annual base rent for each Property the current term of the Lease is $402,373.56 per annum; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease has been completed; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(l) There presently exists no unrestored casualty or condemnation affecting the Property; and
(m) With respect to the Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. , Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after afier the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has or upon the Closing Date will have fee simple title to the Property Property, and, to Seller's knowledge, such title will be upon the Closing Date free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is or will be the sole owner of the entire lessor’s 's interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases forwarded Lease previously provided to Buyer under Section 6(b)(i) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and to Seller's knowledge there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereofthereof (except for the last installment of real estate brokerage commission owed to CBRE / Grand Rapids, LLC, for the Lease term extension which installment shall be paid at Closing); (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvementsimprovements other than for the payment of the Allowance Amount and for the Renovations (each as defined in the Lease); and (v) The total scheduled annual base rent (the rent "Annual Net Rent") for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation extended term of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; Lease commencing January 1, 2014, will be $2,564,550.00 per annum with approximately five and apart from this Agreementone half percent (5.5%) increases every three (3) years through December 3, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated2025;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing (or will be in good standing at Closing) under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any leases, subleases, contracts, subcontracts licenses or other agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and the agreements referenced on Exhibit J annexed hereto;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple Seller’s title to the Property is as represented in the public records of Ouachita Parish, Louisiana, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the current total scheduled annual base rent for under the Lease is $600,710.00 per annum and shall increase at the beginning of each Property is five year period during the Lease term by a percentage equal to one-half of the percentage increase in CPI (as set forth on Exhibit A2defined in the Lease) since the commencement of the preceding five year period;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity, except as set forth in Section 20.13 of the Lease; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”); and
(k) With respect to the Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, each of the Albemarle Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes CLC Seller make the following representations and warranties to Buyer Buyer, with respect to only itself and the Property(ies) owned by such Seller, as of the date hereof and as of the Closing Date with respect to Date, which shall survive the Property:Closing for a period of one (1) year.
(a) Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to (if different than the extent required by law, state of organization) the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller, alone, has, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Real Property, free and clear of all mortgages, liens, claims, judgments, encumbrances, ground rents, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, rights of way, easements, encroachments and any other matters affecting title, except only the Permitted Exceptions. Each individual Property consists of a single contiguous parcel.
(c) Seller has not received any written notice of any current or pending litigation, action, proceeding (including condemnation proceeding or proceeding), tax appeals affecting Seller (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Seller, the Property or in connection with the business operated at the Real Property and Seller does not have any knowledge of any pending litigation or threatened litigation, action, proceeding, tax appeals or environmental investigations against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(cd) Seller has not entered into any contractsPermanent certificates of occupancy and all other licenses, subcontracts permits, authorizations, consents, approvals and other grants of authority required by all governmental or agreements affecting quasi-governmental authorities having jurisdiction, and the Property requisite certificates of the local board of fire underwriters (or other body exercising similar functions), if any, have been issued for the Improvements which are a part of the Property, and for the full functioning and operation of the Property, have been paid for in full, and are in full force and effect.
(e) None of the Contracts will be binding upon Buyer after the Closing other than the Lease;
(df) Except for defaults cured on or before the date hereof, Seller has not received any written notice of default under the terms of any of the Contracts;
(g) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law Laws applicable to the Property and Seller does not have knowledge of any such violations. Seller shall cure or comply with, prior to Closing or as soon thereafter as reasonably practical, any violation or notice of which Seller or Buyer receives written notice prior to the Closing from any of the foregoing governmental, quasi-governmental or nongovernmental authorities;
(eh) No written or oral notice has been given to Seller by any holder of any mortgage or deed of trust on the Property, by any insurance company which has fee simple title issued a policy with respect to any of the Property, or by any board of fire underwriters (or other body exercising similar functions), any of which notices claim any defect or deficiency or request the performance of any repairs, alterations or other work to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxationProperty;
(fi) With respect to the LeasesLease: (i) the Leases forwarded copy of each Lease delivered to Buyer under Section 6(b)(i) are is a true, correct and complete copies copy of the LeasesLease, and the Lease is the only lease, license or occupancy agreement relating to the Property; (ii) the Leases are Lease is valid, subsisting and in full force and effect on the terms set forth therein, and there is no default thereunderhas not been modified, in writing or otherwise, except as set forth on said Schedule; (iii) Seller has not delivered a written notice to Tenant informing Tenant that it is in default of the Lease, nor has Seller received from Tenant a written notice asserting that Seller is in default, and to the best knowledge of Seller, neither Seller nor Tenant is in default of their respective obligations under the Lease; (iv) Seller has no knowledge of any claims, offsets or defenses by Tenant under the Lease; (v) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (ivvi) Seller has no outstanding obligation to provide Tenant with an allowance to construct, of any kind or to construct at any improvements to the Real Property; (vii) Seller has not received rent or other charges from any Tenant more than one (1) month in advance; (viii) Seller has no reason to believe that the Tenant or any guarantor of a Lease is or may become unable or unwilling to perform any of its own expenseobligations under the Lease for any reason; (ix) no guarantor has been released or discharged, voluntarily or involuntarily or by operation of law, from any tenant improvementsobligation with respect to the Lease that is guaranteed; (x) Seller has not applied and shall not apply all or any portion of the security deposit under the Lease to any Rent, and (vxi) the rent for each Property is as set forth on Exhibit A2;no Rents have been assigned, pledged or encumbered.
(gj) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity, except for the rights granted to each Tenant of the Charlottesville Property and the Willow Creek Property pursuant to the applicable Lease for each; and apart from this AgreementAgreement and as aforesaid, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which remain in effect.
(k) The Property is now and has at all times been in compliance in all material respects with all Laws. Seller has not been terminatedreceived any written notice that the Property or Seller’s use and occupancy thereof violates any Laws.
(l) Seller is not a “foreign person” under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and upon consummation of the transaction contemplated hereby, Buyer will not be required by FIRPTA to withhold from the Purchase Price any withholding tax;
(hm) The transactions contemplated hereby either (i) will not constitute a sale There are no employees of all Seller engaged in the operation or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law maintenance of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the ClosingProperty;
(in) To Seller has not initiated or participated in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property; and
(o) During the period of Seller’s knowledge, except as set forth in ownership of the environmental reports previously delivered by Seller to BuyerReal Property, no hazardous substances Hazardous Substances have been generated, stored, released, or disposed of on or about the Real Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”), and to Seller’s knowledge, prior to Seller’s ownership of the Real Property, no Hazardous Substances have been generated, stored, released, or disposed of on or about the Real Property in violation of any Environmental Laws. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of As used in this SubsectionAgreement, the term “hazardous substancesHazardous Substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s best knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property, other than a proposed revised plat of subdivision to be delivered to Buyer with the Due Diligence Documents;
(c) Other than Title Matters, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereofEffective Date, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is the initial term of the Lease will be $2,441,712.00 per annum with increases as set forth on in Exhibit A2“A1”. after year five (5) of the base term of the lease;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s actual knowledge, except as set forth in the environmental reports previously to be delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s actual knowledge, except as set forth in the environmental reports to be delivered by Seller to Buyer, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one six (16) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. , The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $345,700.00 per annum;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLease or as disclosed to Buyer in the Due Diligence Materials. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entityentity other then Tenant’s right of first refusal referred to in this Agreement; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). To Seller’s knowledge, except as disclosed by Seller in the Due Diligence Materials, Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. , To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(ji) Exhibit I attached hereto is a true, correct and complete listing of all warranties still in effect as of the Closing Date for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)
Representations by Seller. For Seller represents the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollowing:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and i. That Seller is the sole owner of the entire lessor’s Interactive Assets with full right to sell or dispose of it as Seller may choose, and no other person has any claim, right, title, interest, or lien in, to, or on the business of the Seller (“Business”) or the Interactive Assets; and
ii. That Seller shall provide a complete listing of the Interactive Assets purchased and sold herein as set forth in Exhibit A. The Seller represents and warrants that this is a complete listing of all the Interactive Assets of the Seller.
iii. That Seller has no undischarged obligations affecting the Interactive Assets being sold under this Agreement; and
iv. That there are presently and will be at the time of closing, no liens or security interests against the property and the Interactive Assets being transferred herein; and
v. Seller owns all rights, title and interest in Interactive Assets transferred as part of this Agreement; and
vi. No consent from or other approval of a governmental entity, board of directors, or any other person is necessary in connection with the Leaseexecution of the Agreement, or the consummation by Seller of the Interactive Assets by Buyer in the manner previously conducted by Seller; and
vii. The Property constitutes one or more separate tax parcels Interactive Assets are merchantable and fit for purposes its intended use and free of ad valorem taxation;any material defects in workmanship. The Interactive Assets are of a type, quantity, and quality usable and salable in the ordinary course of business; and
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are trueviii. Seller represents and warrants that Seller has paid, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any personarrange for the pro-rata payment of, firm, corporation or other entity with respect to or all taxes owed by Seller on account of the current term Business; and
ix. There are no licenses or permits currently required by the Seller for the satisfaction of the Leases sale of Interactive Assets or this Agreement, or Seller has obtained the proper licenses or permits in order to effectuate this Agreement; and
x. There are no actions, suits, proceedings, or investigations pending or, to the knowledge of the Seller, threatened against or involving Seller or brought by Seller or affecting any extension of the purchased property at law or renewal thereofin equity or admiralty or before or by any federal, state, municipal, or other governmental department, commission, board, agency, or instrumentality, domestic or foreign, nor has any such action, suit, proceeding, or investigation been pending during the 24-month period preceding the date hereof; (iv) and Seller is not operating its business under or subject to, or in default with respect to, any order, writ, injunction, or decree of any court of federal, state, municipal, or governmental department, commission, board, agency, or instrumentality, domestic or foreign; and
xi. To the best of its knowledge, Seller has complied with and is operating its business in compliance with all laws, regulations, and orders applicable to the business conducted by it, and the present uses by the Seller of the Interactive Assets do not violate any such laws, regulations, and orders. Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor knowledge of any other person material present or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) future expenditures that will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent be required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To any of Seller’s knowledgeInteractive Assets to achieve compliance with any present statute, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, releasedlaw, or disposed of on or about the Property in violation of any lawregulation, rule or regulation applicable to the Property which regulates or controls matters including those relating to the environment or public occupational health and safety; and
xii. No representation or safety (collectivelywarranty by the Seller contained in this Agreement, “Environmental Laws”)and no statement contained in any certificate or other instrument furnished or to be furnished to Buyer pursuant hereto, or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact that is necessary in order to make the statements contained therein not misleading; and
xiii. Seller has has, as of the purchase date, and shall have on the closing date no liabilities of any kind whatsoever, contingent or otherwise; and
xiv. There shall have been between the purchase date and the closing date no material adverse change in the assets or liabilities or in the condition, financial or otherwise, or in the business, properties, earnings, or net worth of Seller; and
xv. The purchased Interactive Assets or any substantial portion thereof shall not received have been adversely affected in any written notice from (nor delivered material way as a result of any notice to) any federalfire, stateaccident, countyflood, municipal or other governmental departmentcasualty or act of God or the public enemy, agency nor shall any substantial portion of the purchased property have been stolen, taken by eminent domain, or authority concerning any petroleum product or other hazardous substance discharge or seepagesubject to condemnation. For purposes If the Closing occurs hereunder despite such casualty as a result of the waiver of this Subsectioncondition by Buyer, “hazardous substances” the Seller shall mean assign or pay over to the Buyer the proceeds of any substance insurance or material which is defined or deemed to be hazardous or toxic pursuant any condemnation proceeds with respect to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on casualty involving the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for purchased property that occurs after the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yeardate hereof.
Appears in 1 contract
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate In connection with the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect Repurchased Shares to the PropertyCompany, the Seller represents, warrants and covenants to the Company as follows:
(a) This Agreement and all agreements, documents and instruments executed and delivered by the Seller is duly organized (or formed)pursuant hereto are valid and binding obligations of the Seller enforceable in accordance with their respective terms. The Seller has full right, validly existing authority, power and in good standing under the laws of its state of organizationcapacity to enter into, and has taken all requisite action to the extent required by lawauthorize, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing agreements, documents to be and instruments executed and delivered by Seller, the Seller pursuant hereto and to perform all of Seller’s obligations hereunder carry out the transactions contemplated hereby and thereunderthereby. Neither The execution, delivery and performance by the execution and delivery Seller of this Agreement and all closing agreements, documents to be and instruments executed and delivered by Seller, nor the Seller pursuant hereto and the performance of the obligations of Seller hereunder transactions contemplated by this Agreement and such other agreements, documents and instruments do not and will not: (i) violate or thereunder will result in a violation of, conflict with or constitute a default (whether after the giving of notice, lapse of time or both) under, accelerate any obligation under, or give rise to a right of termination of, any contract, agreement, obligation, permit, license or authorization to which the Seller is a party or by which the Seller or Seller’s assets are bound; (ii) violate or result in a violation of, or constitute a default (whether after the giving of any law notice, lapse of time or both) under, any provision of the organizational documents of Seller any law, regulation or will conflict with rule, or any order of, or decree of any restriction imposed by, any court or governmental instrumentality of agency applicable to the Seller; or (iii) require from the Seller any nature by which Seller is bound;notice to, declaration or filing with, or consent or approval of, any governmental authority or other third party.
(b) The Seller has not received any written notice sufficient knowledge and experience in financial, business and tax matters (or has consulted with professional advisors who have such knowledge and expertise) as to be capable of any current or pending litigationevaluating the sale of the Repurchased Shares and to make an informed decision with respect thereto, condemnation proceeding or tax appeals affecting Seller or and the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;fact done so.
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and The Seller is the sole owner of the entire lessorRepurchased Shares free and clear of all liens, claims, encumbrances and restrictions of any kind, except (i) the terms and conditions of the Ninth Amended and Restated Registration Rights Agreement, Ninth Amended and Restated Investors’ Rights Agreement, and Eighth Amended and Restated Voting Agreement each dated as of August 10, 2016 among the Company and certain of its stockholders, and the Company’s interest Bylaws (collectively, the “Ownership Documents”), and (ii) restrictions on transfer under applicable state and federal securities laws (such liens in clauses (i) and (ii) above, “Permitted Liens”).
(d) At any time and from time-to-time after the Lease. Seller’s execution hereof, at the Company’s reasonable request and sole expense, the Seller will execute and deliver such other instruments of transfer or confirmation and take such other actions in order to more effectively transfer, convey and assign to the Company, and to confirm the Company’s title to, the Repurchased Shares transferred pursuant hereto.
(e) The Property constitutes one Seller is not subject to any restraint or more separate tax parcels limitation to conduct the sale of the Repurchased Shares and no consents from any person were or are required for purposes of ad valorem taxation;the transfer hereunder.
(f) With respect The Seller is aware of the Company’s business affairs and financial condition, has been given the opportunity to investigate (and ask questions regarding) the Company’s business and operations, and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to sell, transfer and convey the Repurchased Shares to the Leases: Company at an aggregate purchase price equal to the Purchase Price pursuant to the terms hereof.
(g) The Seller agrees that the Purchase Price has been independently negotiated with the Company and may not be indicative of the true value of the Repurchased Shares. The Seller understands and agrees that the Company makes no representations regarding such true value. Without limitation of the foregoing, the Seller acknowledges and agrees that (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies value of the Leases; Repurchased Shares may be less than the Purchase Price or greater than the Purchase Price, (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from by entering into this Agreement, Seller avoids any risk of a future reduction in value of the Repurchased Shares, and foregoes any future increase in the value of the Repurchased Shares, and (iii) the Company has not provided, and is not obligated to provide, any forward looking statements that may have assisted or been relied upon by Seller in making the decision to execute, deliver and perform the Seller’s obligations under this Agreement. Seller acknowledges that Seller has entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;and performed Seller’s obligations under this Agreement freely and voluntarily.
(h) The transactions contemplated hereby either (i) will not constitute a sale Subject only to the receipt of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by Purchase Price under this Agreement, the law of Seller acknowledges that following the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Closing Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located further claim on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearRepurchased Shares whatsoever.
Appears in 1 contract
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or 14 will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Leases and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all known violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and encumbrances which will be released on or before the Closing Date and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-2 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases.
(g) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no known material default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(gh) There Attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(i) To the best of Seller’s knowledge, there are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of first refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(hj) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ik) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jl) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(m) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(n) To the best of Seller’s knowledge, there presently exists no unrestored casualty or condemnation affecting the Property;
(o) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder; and
(p) To Seller’s actual knowledge and except for Seller’s confidential materials, Seller has provided Buyer with access to all certificates, licenses, permits, Leases, Contracts, books, records, documents and information relating to the Property and the ownership and operation thereof which are in the possession of Seller. Seller represents and warrants that such Due Diligence Materials are true and correct copies of the same materials in Seller’s files. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the each Property:
(a) RAI Care Center Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Leases and the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-3 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases. With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease has been completed; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; , except as follows: the sale of the Davita Dialysis Center Property and apart the consummation of the transactions contemplated hereby with respect to the Davita Dialysis Center Property are subject to a right of first refusal in favor of HCA (the “HCA ROFR”). Apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(l) There presently exists no unrestored casualty or condemnation affecting the Property;
(m) Attached hereto as Exhibit A-4 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”); and
(n) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither To Seller’s knowledge, neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except as my be set forth in the Due Diligence Materials and except as provided below, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property. Buyer acknowledges that Seller is currently involved in litigation with the property appraiser of Dxxxx County, FL regarding prior tax assessments of the Property (Case No. 16-2012-CA-007176 and Case No. 16-2012-CA-004053), which information will be provided to Buyer in the Due Diligence Materials;
(c) Except as provided in the Due Diligence Materials or in the Title Matters, to Seller’s knowledge, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to Except as provided in the Leases: (i) Due Diligence Materials or in the Leases forwarded to Buyer under Section 6(b)(i) are trueTitle Matters, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ig) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(jh) To Seller’s knowledge, Exhibit I F attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year; provided, however, that any action, suit or proceeding with respect to the truth, accuracy or completeness of such representations and warranties, or the breach of such covenants, in each instance discovered by Buyer after the Closing Date, shall be commenced and served, if at all, on or before the date which is one (1) year after the Closing Date and, if not commenced and served on or before such date, such representations, warranties and covenants shall lapse and thereafter shall be void and of no further force or effect. When used herein, the phrase "to Seller's knowledge" or derivations thereof shall mean the current actual, not constructive or imputed, knowledge (current consciousness) of ____________ (and specifically excludes the knowledge of all other officers, managers, partners, employees, or representatives of Seller), the person whom Seller represents is the most knowledgeable about the Property, without any obligation on Seller's part to make any independent investigation of the matters being represented and warranted, or to make any inquiry of any other persons, or to search or examine any files, records, books, correspondence, or the like. Under no circumstances shall any individual named above have any personal liability under this Agreement or otherwise. Notwithstanding any provision of this Agreement to the contrary, Seller shall not have any liability (and Buyer waives its right to bring any action) with respect to any of the foregoing representations and warranties and the covenants of Seller if, prior to the Closing, Purchaser obtains actual written notice of information from Seller that contradicts any of the foregoing representations and warranties, or renders any of the foregoing representations and warranties untrue or incorrect, or establishes Sellers’ breach of such covenants, and Buyer with said knowledge nevertheless consummates the transaction contemplated by this Agreement. In no event shall any Seller be liable to Buyer for indirect, special, consequential (including lost profits) or punitive damages arising out of or in connection with this Agreement. If any of Seller’s representations and warranties shall not be true and correct in all material respects at any time on or before the Closing whether true and correct as of the date of this Agreement or whether any change in facts or circumstances has made the applicable representation and warranty no longer true and correct and regardless as to whether Buyer becomes actually aware of such fact through Seller’s notification or otherwise, then, to the extent Buyer obtains actual knowledge of such breach from Seller, Buyer may, at Buyer’s option, exercised by written notice to Seller (and as its sole and exclusive remedy), either (i) proceed with this transaction, accepting the applicable representation and warranty as being modified by such subsequent matters or knowledge and waiving any right relating thereto, if any, or (ii) terminate this Agreement and declare this Agreement of no further force and effect and in which event the Exxxxxx Money shall promptly be returned to Buyer and Seller shall have no further liability hereunder by reason thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyhereof:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any actual knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property to which Seller is a party (the “Contracts”). Other than the Lease, Ground Lease and the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have actual knowledge of any such violations;
(e) Seller has owns fee simple title to the MOB Property free and clear subject to all matters of all liens and encumbrances except for Permitted Exceptions record and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes Seller is the sole owner of ad valorem taxationthe leasehold interest under the Ground Lease;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease in Seller’s possession; (ii) the Leases are Lease is in full force and effect and there is no default thereunderthereunder by Seller, or to Seller’s actual knowledge, by Tenant; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vi) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (vii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (viii) all specified work required to be performed by the landlord under the Lease has been completed; (ix) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (x) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) There are no occupancy rights, leases or tenancies affecting the MOB Property, other than the Lease and the subleases of the Real Property as set forth on Schedule 11(g), attached hereto and incorporated herein, or, to Seller’s knowledge, affecting the Parking Lot Property other than the Ground Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s actual knowledge, except as set forth in the any environmental reports previously delivered by Seller to BuyerBuyer or delivered by Seller to Buyer pursuant to the terms of this Agreement, no hazardous substances have been generated, stored, released, or disposed of on or about the Property is not in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(ji) There are no warranties in effect for the Property running in favor of Seller, except those described in Exhibit I attached hereto and by this reference incorporated herein (the “Warranties”) ;
(j) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(k) There presently exists no unrestored casualty or condemnation affecting the Property;
(l) With respect to the Ground Lease: (i) the Ground Lease forwarded to Buyer under Section 6(b) is a true, correct and complete listing copy of all the Ground Lease; (ii) the Ground Lease is in full force and effect and there is no default thereunder by Seller or, to Seller’s actual knowledge, by Ground Lessor; and (iii) no brokerage or leasing commissions or other compensation is or will be due or payable by Seller to any person, firm, corporation or other entity with respect to or on account of the current term of the Ground Lease or any extension or renewal thereof; and
(m) The Knowledge Party has the most knowledge of the Seller parties regarding the subject matter of the representations and warranties in effect for the Property (the “Warranties”)contained herein. The representations and warranties of Seller shall survive Closing for a period of one nine (19) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Lease and the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the total scheduled annual base rent for each Property the current term of the Lease is $113,125.67 per annum with increases of two per cent (2%) per annum; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease has been completed; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code; and
(l) There presently exists no unrestored casualty or condemnation affecting the Property. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to Date, which shall survive the Property:Closing for a period of one (1) year.
(a) Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to (if different than the extent required by law, state of organization) the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller, alone, has, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Real Property as a single contiguous parcel, free and clear of all mortgages, deeds of trust, liens (excluding Bonded Liens), judgments, encumbrances, ground rents, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, rights of way, easements, encroachments and any other matters affecting title, except only the Permitted Exceptions.
(c) Seller has not received any written notice of any threatened, current or pending litigation, action, proceeding (including municipal, health, administrative, or condemnation proceeding or proceedings), tax appeals affecting (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Seller, any tenant or an Operating Subtenant, the Property or in connection with the business operated at the Real Property. Notwithstanding any provision in this Agreement to the contrary, the disclosure of current or pending litigation shall in no way release Seller from responsibility for any such claims, and Buyer shall in no way be deemed to have assumed responsibility for any such claims, either by virtue of receipt of such notice or the occurrence of the Closing.
(d) Permanent certificates of occupancy and all other licenses, permits, authorizations, consents, approvals and other grants of authority required by all governmental or quasi-governmental authorities having jurisdiction, including but not limited to Regulatory Approvals by all applicable Health Care Regulatory Agency and Third Party Payor, and the requisite certificates of the local board of fire underwriters (or other body exercising similar functions), if any, have been, or as of Closing will have been, issued for the Improvements which are a part of the Property, and for the full functioning and operation of the Property and the operation of an assisted living facility thereon, have been paid for in full, and are, or as of Closing will be, in full force and effect. Without limiting the generality of the foregoing,
(i) Each Facility is, or as of Closing will have been, duly licensed as required under applicable laws. The licensed bed capacity and number of units of each Facility is as set forth on Schedule 1. Neither Tenant nor any Facility has applied to reduce the number of licensed or certified beds of such Facility, to move or transfer the right to any and all of the licensed or certified beds of such Facility to any other location, or to amend or otherwise change such Facility’s authorized bed capacity and/or the number of approved beds, and there are no proceedings or actions pending or, to Seller’s knowledge, contemplated to reduce the number of licensed or certified beds of such Facility.
(ii) Each Operating Subtenant and the operation of each Facility are in material compliance with all applicable laws, Health Care Licenses and requirements of Health Care Regulatory Agencies and other governmental authorities having jurisdiction over the operation of such Facility, including, (i) staffing requirements, (ii) health and fire safety codes and standards, including quality and safety standards, (iii) accepted professional standards and principles that apply to professionals providing services in such Facility; (iv) federal, state or local laws, rules, regulations or published interpretations or policies relating to the prevention of fraud and abuse, (v) insurance, reimbursement and cost reporting requirements, (vi) government payment program requirements and disclosure of ownership and related information requirements; (vii) requirements of the applicable state department of health or equivalent and all other federal, state, or focal governmental authorities, including without limitation those relating to such Facility’s physical structure and environment, licensing, quality and adequacy of medical care, distribution or pharmaceuticals, rate setting, equipment, personnel, operating policies, additions to facilities and services and fee splitting, and any other applicable laws, regulations or agreements for reimbursement for the type of care or services provided with respect to such Facility.
(iii) Seller does is in substantial compliance with the requirements for participation in the Medicare and Medicaid Programs with respect to each Facility that currently participates in such programs, including the Medicare and Medicaid Patient and Program Protection Act of 1987, and has a current provider agreement under Title XVIII and/or XIX of the Social Security Act (if required), which is in full force and effect. The Facilities did not have any knowledge deficiencies at level G or above on its most recent survey (standard or complaint), nor has the Operating Subtenant been cited with any substandard quality of any pending litigation or tax appeals against Seller care deficiencies (as that term is defined in Part 488 of 42 C.F.R) for the past two consecutive surveys. None of the Facilities or the Property; Seller Operating Subtenants, except as has not initiatedbeen disclosed in writing to Landlord, nor is Seller participating in, any action for their respective affiliates has been the subject of a change “double G” or modification in the current subdivision, site plan, zoning or other land use permits “immediate jeopardy” determination for the Property;last three years.
(ce) Seller has not entered into any contracts, subcontracts or agreements affecting None of the Property which Contracts will be binding upon Buyer after the Closing unless expressly assumed by Buyer; Seller is not a party to any lease or license agreement with a third party giving that party the right to be in possession of any portion of the Real Property; no Seller has entered into an agreement with a third party pursuant to which Seller provides any payment, fee or other than consideration to any third person or entity to operate or manage the LeaseFacility or to provide management, advisory or other services relating to the operation thereof;
(df) Except for defaults cured on or before the date hereof, neither Seller nor any Operating Subtenant has received any written notice of default under the terms of any of the Contracts;
(g) Except for violations cured or remedied on or before the date hereof, neither Seller nor any Operating Subtenant has not received any written notice from (or delivered any notice to) any governmental authority authority, including, but not limited to, a Health Care Regulatory Agency and Third Party Payor, regarding any violation of any law Laws applicable to the Property and operation of the Property and the operation of an assisted living facility thereon, and Seller does not have knowledge of any such violations. Seller shall cure or comply with, or cause the Operating Subtenant to cure or comply with, prior to Closing, any violation or notice of which Seller or Buyer receives written notice prior to the Closing from any of the foregoing governmental, quasi-governmental or nongovernmental authorities;
(eh) No written or oral notice has been given to Seller by any holder of any mortgage or deed of trust on the Property, by any insurance company which has fee simple title issued a policy with respect to any of the Property, or by any board of fire underwriters (or other body exercising similar functions), any of which notices claim any defect or deficiency or request the performance of any repairs, alterations or other work to the Property;
(i) The Tangible Personal Property to be transferred to Buyer is free and clear of all liens liens, security interests and other encumbrances arising by, through or under Seller, except for Permitted Exceptions and as a result of loan instruments securing a loan that shall be paid in full by Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one at or more separate tax parcels for purposes of ad valorem taxationprior to Closing;
(fj) With respect to To Seller’s knowledge, there are no material defects in the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies structural elements of the Leases; Improvements and all Improvements (iiincluding, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Leases Property are in full force good mechanical working order, condition and effect repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and there is no default thereunderleak or material defect in any roof located upon the Property; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable provided, however, that the foregoing representation shall only apply to any person, firm, corporation or other entity with respect to or on account of the current term of Huntersville Property at the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;Final Closing.
(gk) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right or rights of first offer in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;remain in effect.
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(il) To Seller’s knowledge, except as set forth the Property and each facility operated thereon are now and has at all times been in compliance with all Laws. Seller has not received any written notice that the Property, Seller’s or any Operating Subtenant’s use and occupancy or the operation of the facility thereon violates any Laws. To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
(m) Seller is not a “foreign person” under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and upon consummation of the transaction contemplated hereby, Buyer will not be required by FIRPTA to withhold from the Purchase Price any withholding tax;
(n) Seller has not initiated or participated in, any action for a change or modification in the environmental reports previously delivered by Seller to Buyercurrent subdivision, site plan, zoning or other land use permits for the Property; and
(o) During the period of Seller’s ownership of the Real Property and Improvements, no hazardous substances Hazardous Substances have been generated, stored, released, treated or disposed of on on, under, to, from or about the Real Property or Improvements in material violation of any law, rule rule, legal requirement or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”), and to Seller’s knowledge, prior to Seller’s ownership of the Real Property and Improvements, no Hazardous Substances have been generated, stored, released, treated or disposed of on, under, to, from or about the Real Property or Improvements in violation of any Environmental Laws. Seller has not received any actual or threatened, written notice or verbal notice, demand or claim from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority authority, or any third party, and to Seller's knowledge, no circumstances exist on the Real Property that could give rise to any notice, demand or claim, concerning any petroleum product or other hazardous substance discharge or seepageHazardous Substance release. For purposes of As used in this SubsectionAgreement, the term “hazardous substancesHazardous Substances” shall mean any substance or material which is listed, defined or deemed to be a waste, contaminant or pollutant, or substance or material potentially harmful, hazardous or toxic to human health or safety or the environment pursuant to any Environmental Laws, including but without limitation, petroleum, petroleum based product and any petroleum constituent. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for . Seller has received no written notice that the Property (the “Warranties”). The representations and warranties or any portion thereof contains any form of Seller shall survive Closing for a period of one (1) yeartoxic mold.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Representations by Seller. (a) For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller hereby represents and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer warrants as of the date hereof and Effective Date, as of the Closing Date with respect to the Propertyfollows:
(ai) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organizationorganization and, and to the extent required by law, the laws of the State in which the Property is located. of California;
(ii) Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither ;
(iii) The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby will not, to Seller’s knowledge (A) violate any judgment, order, injunction, decree, regulation or ruling of any court or governmental entity or (B) conflict with, result in a breach of, or constitute a default under the organic documents of Seller, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease or other material agreement or instrument to which Seller is a party or by which Seller may be bound;
(iv) There are no legal actions, suits or similar proceedings pending and served, or, to Seller’s knowledge, threatened against Seller or the Property;
(v) Seller is not a “foreign person” or “foreign corporation” as those terms are defined in the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder;
(vi) No consent, waiver, approval or authorization is required from any person or entity (that has not already been obtained) in connection with the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor Seller or the performance by Seller of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is boundtransactions contemplated hereby;
(bvii) Seller has not received any written condemnation notice from governmental and quasigovernmental body or agency having jurisdiction over Seller, the Land or any portion thereof;
(viii) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, countycounty or municipal authority as to the existence of any Hazardous Materials (as hereafter defined) at the Property. “Hazardous Materials” means any pollutants, municipal or other governmental departmentcontaminants, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to substances, materials or wastes (including petroleum, petroleum by-products, radon, asbestos and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing equipment, radioactive elements, infectious agents, and urea formaldehyde), as such terms are used in any Environmental Laws. To Seller’s knowledgeLaws (as defined below) (excluding solvents, there are no underground storage tanks located on cleaning fluids and other lawful substances used in the Property;
(j) Exhibit I attached hereto is a trueordinary operation and maintenance of the Land, correct and complete listing of all warranties to the extent in effect for the Property (the “Warranties”closed containers). The representations term “Environmental Law” means any present federal, state and warranties local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of Seller shall survive Closing human health (as it relates to Hazardous Substances or the environment, relating to Hazardous Substances, relating to liability for a period or costs of one other actual or threatened danger to human health (1as it relates to Hazardous Substances) year.or the environment;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;; Notwithstanding the Right of First Offer per the Lease Agreements.
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year. Seller's maximum liability under this section 11 shall be capped at $200,000.00 and Buyer may not bring a claim against Seller pursuant to this section 11 unless such claim is a minimum of at least $50,000.00.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $107,100.00 per annum with a five percent (5%) increase year eleven (11) of the Lease;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLease or any Permitted Exceptions. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties Consumer Warranties in effect for the Property (the “Warranties”)Property. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and other contracts or agreements disclosed to Buyer during Due Diligence;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions (and Liens to be discharged at Closing) and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereofthereof which Seller is responsible for paying; (iv) Subject to the Lease terms and any Amendment thereto, Seller has no other outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) Subject to the Lease terms and any Amendment thereto, the total scheduled annual base rent (the “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $3,454,960.00 per annum with five percent (5.0%) increases in years six (6) and eleven (11);
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, subject to and except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I E attached hereto is will, at the time of closing, be a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one One Hundred and Eighty (1180) yeardays.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets, other than the WBH ROFR;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Leases and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-2 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases.
(g) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and effect, and, to the best of Seller's actual knowledge, there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(gh) Attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(i) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of first refusal or other purchase right in favor of any other person or entityentity which will not be waived prior to Closing; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ij) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jk) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(l) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(m) There presently exists no unrestored casualty or condemnation affecting the Property;
(n) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder;
(o) To Seller’s actual knowledge and except for Seller’s confidential materials and internal correspondence and communications with its members, Seller has provided Buyer with access to all Due Diligence Materials itemized in Exhibit B of that certain Letter of Intent between Seller and Buyer dated August 4, 2015. Seller represents and warrants that such Due Diligence Materials are true and correct copies of the same materials in Seller’s files; and
(p) Xxxxxxx X. Xxxxx has the most knowledge among Seller’s principals and employees of the subject matter of Seller’s representations and warranties contained in this Agreement. References in Section 11 above to the "knowledge" of Seller shall refer to the actual knowledge of Xxxxxxx X. Xxxxx, after consultation with the property manager of the Real Property; provided, however that neither Xxxxxxx X. Xxxxx nor the property manager shall have any personal liability under this Agreement.. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, each Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the such Seller’s Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously to be delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(ji) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect Date, exceptions to the Propertywhich are listed on Schedule 11 attached hereto:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound, subject to the Joliet Right. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets, subject to the Joliet Right;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit L is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of each Property that Seller has entered into (the “Contracts”). Other than the Lease and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLeases and a month to month verbal agreement between the Seller and Xxxxxxx Xxxxxxx Investments, Inc., under which Xxxxxxx Xxxxxxx Investments, Inc., provides property management services, which shall terminate as of the Closing Date;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property entire lessee's interest under the Ground Lease free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s 's interest in the LeaseLeases. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i6(b) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the property is improved with approximately 7020 square feet of improvements and fixtures attached thereto, together with paved and concrete parking and (vi) The total scheduled annual base rent (the “Annual Net Rent”) for each Property the period May 1, 2011 through April 30, 2012 of the Leases is as set forth on Exhibit A2$178,938.40 per annum ;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Leases and the Ground Lease. Neither Except as provided in the Ground Lease, neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s 's knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s 's knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)
Representations by Seller. For Seller, to the purpose best of inducing Buyer to enter into this Agreement Seller’s actual knowledge, represents and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties warrants to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollows:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its obligations under this Agreement and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding violation of law, zoning or land-use change, condemnation, tax appeals affecting or environmental investigations against Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, legal violation, zoning or land-use change, condemnation, tax appeals appeal or environmental investigations against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Except as contained in the Seller Deliverables or as may appear of record or as otherwise agreed to pursuant to the terms of this Agreement, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rightsagreements, leases leases, or tenancies other occupancy agreements affecting the Property other than the Lease. Neither this Agreement nor the consummation except as may appear of the transactions contemplated hereby is subject record or those that will be terminated at or prior to any first right of refusal or other purchase right in favor of any other person or entityClosing; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;and
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ie) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to BuyerBuyer (including Seller Deliverables and/or the existing Brownfields Agreement), no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one twelve (112) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the “Annual Net Rent”) for the initial term of the Lease will be $2,571,367.00 per annum, with 2.50% base rent for each Property is as set forth on Exhibit A2;increases annually.
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;; and
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I H attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing existence under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenant, if any, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Except as disclosed to Buyer pursuant to Section 6 of this Agreement, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violationsviolations (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default or dispute thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent total scheduled Annual Base Rent for each Property the current term of the Lease is as set forth on Exhibit A2;in the Lease. With respect to the Guaranty, (i) the Guaranty forwarded to Buyer under Section 6(b)(i) is a true, correct and complete copy of the Guaranty; (ii) the Guaranty is in full force and effect and there is no default or dispute thereunder; (iii) the Guaranty is a valid, enforceable guaranty against Guarantor; and (iv) Seller has not entered into any modification, amendment, termination or surrender of the Guaranty.
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year. For purposes of this Agreement, Seller’s knowledge shall mean the actual current knowledge of Xxxxxx X. D’Italia, Chief Executive Officer of Seller, as of the date hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement Seller represents and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties warrants to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollows:
(a1) This Agreement (i) is and at the time of Closing will be duly authorized, executed and delivered by Seller, (ii) is and at the time of Closing will represent the legal, valid and binding obligations of Seller, and (iii) does not and at the time of Closing will not violate or conflict with any provision of any agreement or judicial order to which Seller is duly organized (a party or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which Seller or the Property is locatedsubject. All other documents executed by Seller has the power and authority to execute and deliver this Agreement and all closing documents which are to be delivered to Buyer at Closing (i) are or at the time of Closing will be duly authorized, executed and delivered by Seller, (ii) are or at the time of Closing will represent the legal, valid and to perform all binding obligations of Seller’s obligations hereunder , and thereunder(iii) do not and at the time of Closing will not violate or conflict with any provision of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. Neither No consent or approval is required for the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and performance by Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or its obligations hereunder other land use permits for the Property;than those already obtained by Seller.
(c2) Seller has is not entered into any contracts, subcontracts or agreements affecting a “foreign person” within the Property which will be binding upon Buyer after meaning of Section 1445(f)(3) of the Closing other than the Lease;Federal Code.
(d3) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded Materials delivered to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) originals of such documents in the Leases possession or control of Seller or Seller’s agents and are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account all of the current term Property Materials in the possession or control of Seller or Seller’s agents. The Property Materials constitute all of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies documents affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal that disclose potential defects or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability problems with respect to the period prior condition, use or operation of the Property which remain uncured and there are no documents not in the possession or under the control of Seller or Seller’s Representatives or property manager that disclose defects or problems with respect to the condition, use or operation of the Property which remain uncured. Prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered Seller agrees to promptly deliver to Buyer any additional documents received by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectivelyphysical condition, use and operation of the Property. “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substancesSeller's Representatives” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To mean, collectively and individually, the agents, employees, officers, directors, property managers, contractors, subcontractors, attorneys, consultants and representatives of Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyhereof:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenants, if any, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any actual knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no actual knowledge that the Property may be rezoned;
(c) Seller has not entered into any leases, subleases, contracts, subcontracts licenses or other agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLeases and the agreements referenced on Exhibit J annexed hereto;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any outstanding violation of any law applicable to the Property and Seller does not have actual knowledge of any such violationsviolations and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any actual knowledge of any such violation;
(e) Seller has fee simple title to the Property (and to Seller’s actual knowledge, such title is free and clear of all liens and encumbrances except for Permitted Exceptions Exceptions), and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect effect, and to Seller’s actual knowledge there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements, except as set forth in Schedule 11(f)(iv) attached hereto or as set forth in the Khattab Amendment; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing, except as set forth in Schedule 11(f)(vi) attached hereto; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2Schedule 11(f)(vii) attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no actual knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) Attached hereto as Exhibit A-4 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(h) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases, and to Seller’s actual knowledge there are no existing subleases, with the exception of the sublease whereby Dignity Health subleased a portion of its premises to Quest Diagnostics (the “Quest Sublease”). Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(hi) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide take all steps, if any, necessary to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance comply with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ij) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to BuyerBuyer or as disclosed in the Due Diligence Materials, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s actual knowledge, there are no underground storage tanks located on the Property;
(jk) Exhibit I attached hereto is a true, correct and complete listing of all warranties currently in effect for the Property (the “Warranties”);
(l) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(m) There presently exists no unrestored casualty or condemnation affecting the Property; and
(n) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder. As used herein “to the best of Seller’s knowledge,” “Seller’s actual knowledge” or “Seller has not received written notice” shall mean the actual knowledge of or receipt of written notice by Gxxxx Xxxxx and/or Exxx Xxxxxxxxx. Seller represents and warrants to Buyer that (i) Gxxxx Xxxxx (title: Vice President) has a day-to-day working knowledge of the Laguna Professional Property and the subject matter of the representations and warranties of Seller set forth herein with respect to the Laguna Professional Property, and (ii) Exxx Xxxxxxxxx (title: Vice President) has a day-to-day working knowledge of the UCD Property and the subject matter of the representations and warranties of Seller set forth herein with respect to the UCD Property. There shall be no duty imposed or implied to investigate, inspect or audit any such matters, and there shall be no personal liability on the part of such persons. The representations and warranties of Seller shall survive Closing for a period of one (1) yearyear (the “Survival Period”). No claim for a breach of any representation or warranty in this Section 11 shall be actionable or payable (i) unless and until the valid claims for all such breaches collectively aggregate more than Twenty-Five Thousand and no/100 Dollars ($25,000.00), and (ii) unless written notice containing a description of the specific nature of such breach shall have been given to Seller prior to the expiration of the Survival Period, and an action shall have been commenced in a court having jurisdiction within sixty (60) days after the expiration of the Survival Period. In no event shall the total liability of Seller to Buyer for all breaches of all representations and warranties of Seller in this Agreement exceed the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000). Notwithstanding anything in this Agreement to the contrary, if (a) on the Effective Date Buyer has actual knowledge that any of Seller’s representations or warranties set forth in Section 11 are untrue in any respect, then the breach by Seller of the representations or warranties as to which Buyer has such knowledge shall be deemed waived by Buyer, and Seller shall not be in default hereunder and shall have no liability to Buyer or its successors or assigns in respect thereof, and (b) after the Effective Date and prior to Closing, Buyer obtains actual knowledge that any of Seller’s representations or warranties set forth in this Agreement, or any of Seller’s representations or warranties made in any documents delivered by Seller in connection with the Closing, are untrue in any respect, then Seller shall have no liability to Buyer or its successors or assigns in respect thereof following the Closing for the breach of such representations or warranties. For purposes of this Section 11, Buyer shall be deemed to have or to have obtained knowledge of any such matter or thing only if such matter or thing (i) is set forth in any Lease, the Due Diligence Materials, or any other document delivered to Buyer, or (ii) is made available for review by Buyer to the extent Seller actually notified Buyer in writing that such matter or thing were available for Buyer’s review, or (iii) was set forth in any written studies or reports furnished to Buyer including, without limitation, any environmental reports, or (iv) was set forth in any letter, memorandum, or other written communication provided to or otherwise made available for inspection by Buyer or Buyer’s attorneys to the extent Seller actually notified Buyer in writing that such letter, memorandum, or other written communication were available for Buyer’s review, or (v) was otherwise within the actual knowledge of Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(ji) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one six (16) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform perfoim all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(fd) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant Tenants with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property Annual Net Rent is currently and as set forth on Exhibit A2of the Closing Date shall be $823,764.68 per annum;
(ge) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(if) To Seller’s 's knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “"Environmental Laws”"). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” "Hazardous Substances" shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. , To Seller’s 's knowledge, there are no underground storage tanks located on the Property;; and
(jg) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “"Warranties”"). For purposes of this Section 11, references to "Seller's knowledge" or similar phraseology shall mean the actual knowledge of Xxxx X. Xxxxx, M.D., Ph.D., without independent investigation or inquiry. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; (iv) Tenant has delivered Seller a Lease Renewal dated July 17, 2012 (the "Lease Renewal"), a copy of which is attached as Exhibit I, pursuant to which Tenant exercised a five (5) year renewal option to commence on February 1, 2020 and expire on January 31, 2025, upon the same terms, covenants and conditions contained in the Lease, except that minimum monthly rent shall be $20,106.56 per month from August 1, 2012 through January 31, 2025. Seller agrees to execute the Lease Renewal at Closing; and (v) the total scheduled annual base rent (the “Annual Net Rent”) for each Property is as set forth on Exhibit A2the current term of the Lease will be $241,278.72, upon the full execution of the Lease Renewal;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;; and
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent Annual Base Rent for each Property is as set forth on Exhibit A2the current term of the Lease will be $383,388.00 per annum;
(g) There Other than the Lease, there are no occupancy rights, leases or tenancies affecting the Property other than the LeaseProperty. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(ji) Exhibit I H attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearyear following Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenant, if any, or as otherwise set forth in the Due Diligence Materials, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Except as set forth in the Due Diligence Materials, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except as set forth in the Due Diligence Materials, and except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violationsviolations and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s 's interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i1) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) to Seller's knowledge, the Leases are in full force and effect and there is no default or dispute thereunder; (iii) except as set forth in the Due Diligence Materials, no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) except with respect to Properties Under Construction, Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;A . With respect to the Guaranty, (i) the Guaranty forwarded to Buyer under Section 6(b)(i) is a true, correct and complete copy of the Guaranty; (ii) to Seller's knowledge the Guaranty is in full force and effect and there is no default or dispute thereunder; and (iii) Seller has not entered into any modification, amendment, termination or surrender of the Guaranty.
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither Except as set forth in the Due Diligence Materials, neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entityentity that has not or will not be waived as to this transaction; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the ClosingReserved;
(i) To Seller’s 's knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, Buyer or received by Buyer as part of its due diligence examinations:
(i) no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “"Environmental Laws”"). ;
(ii) Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. ; and
(iii) There are no underground storage tanks located on the Property.
(iv) For purposes of this Subsection, “"hazardous substances” " shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;.
(j) Exhibit I attached hereto is a The Due Diligence Materials contain true, correct and complete listing copies of all warranties in effect for the Property (the “"Warranties”").
(k) Seller has not released any of the Tenants listed on Exhibit A from liability under its Lease. This is true for all Properties, including any Tenants listed on Exhibit A that have subleased the Property to a subtenant. Seller also has no actual knowledge that any Tenant is released from liability under the terms of the Lease. If Buyer discovers a Tenant listed on Exhibit A has been released from liability under its Lease at any time before the Closing Date, Buyer shall have the right to remove the Property from this Agreement, and have no further obligation to close on that Property, without it counting as a Dropped Property. If Buyer choses to remove the Property from the Agreement, the Xxxxxxx Money apportioned to that Property shall be refunded by the Escrow Agent. The representations and warranties contained of Seller shall survive the Closing for a twelve (12) month period (the "Limitation Period"). Buyer shall provide actual written notice to Seller of any pre-Closing breach of any of Seller's warranties or representations as set forth in this Section 11 of which Buyer acquires knowledge, through any means, at any time after the Closing Date but prior to the expiration of the Limitation Period, and Buyer may bring an action at law for damages as a consequence thereof; which must be commenced, if at all, prior to the expiration of the Limitation Period, Notwithstanding anything in this Section 11 to the contrary, (i) Buyer shall not be entitled to make a claim against Seller for a violation of the representations, warranties, and covenants in this Section 11 unless the amount of damages to Buyer equals or exceeds Fifty Thousand and No/100 Dollars ($50,000.00) in the aggregate of all such claims and (ii) the cumulative, maximum amount of liability that Seller shall have to Buyer for breaches of the representations, warranties and covenants under this Section 11 of this Agreement shall not exceed one percent (1%) yearof the Purchase Price ("Cap Amount"), The Cap Amount shall not be applicable in the event that a court of competent jurisdiction renders a final decree finding that the breach of Seller's warranties and representations constituted fraud. The Cap Amount shall not limit Buyer's right to recover attorneys' fees or interest awarded to it by a court of competent jurisdiction. The acceptance of the Deed by Buyer at Closing in accordance with this Agreement shall from and after the Limitation Period (except as to actions properly asserted during the Limitation Period) be deemed to be a full performance and discharge of every representation, warranty and covenant made by Seller in this Section 11 and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Section 11. Whenever set forth in this Agreement, the phrases "knowledge" or "actual knowledge" or any similar such phrase relating to Seller shall be deemed to mean only the actual current knowledge of Xxxxxxx Xxxxx, Xx. as President of Mesa Real Estate Partners GP, LLC, a Delaware limited liability company, General Partner of Seller (who shall have no personal liability with respect to such matters), without any requirement of making an inquiry or investigation. With reference to warranties and representations made subject to Seller's actual knowledge (or words of similar import), in no event shall Seller be liable for the inaccuracy of the underlying warranty or representation if Seller had no actual knowledge of the inaccuracy at the time of making the warranty or representation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property, including, but not limited to, any property management agreements, listing agreements and/or leasing agreements relating to the Property (the “Contracts”). Other than the Leases and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-2 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases.
(g) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(gh) Attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(i) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(hj) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ik) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jl) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(m) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(n) There presently exists no unrestored casualty or condemnation affecting the Property;
(o) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder; and
(p) To Seller’s actual knowledge and except for Seller’s confidential materials, Seller has provided Buyer with access to all certificates, licenses, permits, Leases, Contracts, books, records, documents and information relating to the Property and the ownership and operation thereof which are in the possession of Seller. Seller represents and warrants that such Due Diligence Materials are true and correct copies of the same materials in Seller’s files. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s 's interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) ; With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent "Annual Net Rent") for each Property is as set forth on Exhibit A2the initial term of the Lease will be $1,355,458.00 per annum;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to Date, which shall survive the Property:Closing for a period of one (1) year.
(a) Seller is duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to (if different than the extent required by law, state of organization) the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, and has the all necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller, alone, has, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Real Property as a single contiguous parcel, free and clear of all mortgages, deeds of trust, liens, claims, judgments, encumbrances, ground rents, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, rights of way, easements, encroachments and any other matters affecting title, except only the Permitted Exceptions;
(c) Except as otherwise provided on Schedule 11(c), Seller has not received any written notice of any threatened, current or pending litigation, action, proceeding (including municipal, health, administrative, or condemnation proceeding or proceedings), tax appeals affecting (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Seller, any tenant or an Operating Subtenant, the Property or in connection with the business operated at the Real Property. Notwithstanding any provision in this Agreement to the contrary, the disclosure of current or pending litigation shall in no way release Seller or the current operators of the Premises from responsibility for any such claims, and Buyer shall in no way be deemed to have assumed responsibility for any such claims, either by virtue of receipt of such notice or the occurrence of the Closing; and
(d) Permanent certificates of occupancy and all other licenses, permits, authorizations, consents, approvals and other grants of authority required by all governmental or quasi-governmental authorities having jurisdiction, including but not limited to Regulatory Approvals by all applicable Health Care Regulatory Agency and Third Party Payor, and the requisite certificates of the local board of fire underwriters (or other body exercising similar functions), if any, have been, or as of Closing will have been, issued for the Improvements which are a part of the Property, and for the full functioning and operation of the Property and Seller does the operation of an assisted living facility thereon, have been paid for in full, and are, or as of Closing will be, in full force and effect. Without limiting the generality of the foregoing:
(i) Each facility operated on the Property (a “Facility”) is duly licensed as required under applicable laws. The licensed bed capacity of each Facility is as set forth on Schedule 2. No application has been filed to reduce the number of licensed or certified beds of such Facility, to move or transfer the right to any and all of the licensed or certified beds of such Facility to any other location, or to amend or otherwise change such Facility’s authorized bed capacity and/or the number of approved beds, and there are no proceedings or actions pending or, to Seller’s knowledge, contemplated to reduce the number of licensed or certified beds of such Facility.
(ii) Tenant, each Operating Subtenant and the operation of each Facility are in material compliance with all applicable laws, Health Care Licenses and requirements of Health Care Regulatory Agencies and other governmental authorities having jurisdiction over the operation of such Facility, including, (i) staffing requirements, (ii) health and fire safety codes and standards, including quality and safety standards, (iii) accepted professional standards and principles that apply to professionals providing services in such Facility; (iv) federal, state or local laws, rules, regulations or published interpretations or policies relating to the prevention of fraud and abuse, (v) insurance, reimbursement and cost reporting requirements, (vi) government payment program requirements and disclosure of ownership and related information requirements; (vii) requirements of the applicable state department of health or equivalent and all other federal, state, or focal governmental authorities, including without limitation those relating to such Facility’s physical structure and environment, licensing, quality and adequacy of medical care, distribution or pharmaceuticals, rate setting, equipment, personnel, operating policies, additions to facilities and services and fee splitting, and any other applicable laws, regulations or agreements for reimbursement for the type of care or services provided with respect to such Facility. Tenant will and will cause the operation of each Facility to be in material compliance with the foregoing throughout the Term of the Master Lease.
(iii) Tenant and each Operating Subtenant is in substantial compliance with the requirements for participation in the Medicare and Medicaid Programs with respect to each Facility that currently participates in such programs, including the Medicare and Medicaid Patient and Program Protection Act of 1987, and has a current provider agreement under Title XVIII and/or XIX of the Social Security Act, which is in full force and effect. The Facilities did not have any knowledge of any pending litigation deficiencies at level G or tax appeals against Seller above on its most recent survey (standard or complaint), nor has Tenant or the Property; Seller has not initiated, nor Operating Subtenant been cited with any substandard quality of care deficiencies (as that term is Seller participating in, any action for a change or modification defined in the current subdivision, site plan, zoning or other land use permits Part 488 of 42 C.F.R) for the Property;past two consecutive surveys. Neither the Facilities nor any other health care facility owned or operated by Tenant or the Operating Subtenants or, except has been disclosed in writing to Landlord, their respective affiliates has been the subject of a “double G” or “immediate jeopardy” determination for the last three years.
(ce) Seller has not entered into any contractsExcept for that certain Declaration of Land Use Restrictive Covenants for Housing Tax Credits in Accordance With Section 42 of the Internal Revenue Code between Cleveland PCH Residential Living, subcontracts or agreements affecting LLC and Mississippi Home Corporation, recorded on December 29, 2004 in Book M257 Page 274 of the Property which records of Bolivar County, Mississippi (the “Declaration of Land Use Restrictive Covenants”), none of the Contracts will be binding upon Buyer after the Closing other than Closing. Except for defaults cured on or before the Lease;date hereof, Seller has not received any written notice of default and is not aware of any conditions or events which would, with the passage of time, constitute a default under the Declaration of Land Use Restrictive Covenants.
(df) Except for defaults cured on or before the date hereof, neither Seller nor any Operating Subtenant has received any written notice of default under the terms of any of the Contracts.
(g) Except for violations cured or remedied on or before the date hereof, neither Seller nor any Operating Subtenant has not received any written notice from (or delivered any notice to) any governmental authority authority, including, but not limited to, a Health Care Regulatory Agency and Third Party Payor, regarding any violation of any law Laws applicable to the Property and operation of the Property and the operation of an assisted living facility thereon, and Seller does not have knowledge of any such violations;. Seller shall cure or comply with, or cause the Operating Subtenant to cure or comply with, prior to Closing, any violation or notice of which Seller or Buyer receives written notice prior to the Closing from any of the foregoing governmental, quasi-governmental or nongovernmental authorities.
(eh) No written or oral notice has been given to Seller by any holder of any mortgage or deed of trust on the Property, by any insurance company which has fee simple title issued a policy with respect to any of the Property, or by any board of fire underwriters (or other body exercising similar functions), any of which notices claim any defect or deficiency or request the performance of any repairs, alterations or other work to the Property.
(i) The Tangible Personal Property to be transferred to Buyer is free and clear of all liens liens, security interests and other encumbrances arising by, through or under Seller, except for Permitted Exceptions and as a result of loan instruments securing a loan that shall be paid in full by Seller is at or prior to Closing.
(j) Except as otherwise provided on Schedule 11(j), to Seller’s knowledge, there are no material defects in the sole owner structural elements of the entire lessor’s interest in Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force good mechanical working order, condition and effect repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and there is no default thereunder; (iii) no brokerage leak or leasing commissions or other compensation is or will be due or payable to material defect in any person, firm, corporation or other entity with respect to or on account of roof located upon the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;Property.
(gk) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;remain in effect.
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(il) To Seller’s knowledge, except as set forth the Property and each facility operated thereon are now and has at all times been in compliance with all Laws. Seller has not received any written notice that the Property or the use and occupancy or the operation of the facility thereon violates any Laws. To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
(m) Seller is not a “foreign person” under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and upon consummation of the transaction contemplated hereby, Buyer will not be required by FIRPTA to withhold from the Purchase Price any withholding tax.
(n) There are no employees of Seller engaged in the environmental reports previously delivered by operation or maintenance of the Property, other than those who will continue as employees of Tenant/an Operating Subtenant.
(o) Seller to Buyerhas not initiated or participated in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property.
(p) During the period of Seller’s ownership of the Real Property and Improvements, no hazardous substances Hazardous Substances have been generated, stored, released, treated or disposed of on on, under, to, from or about the Real Property or Improvements in violation of any law, rule rule, legal requirement or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”), and to Seller’s knowledge, prior to Seller’s ownership of the Real Property and Improvements, no Hazardous Substances have been generated, stored, released, treated or disposed of on, under, to, from or about the Real Property or Improvements in violation of any Environmental Laws. Seller has not received any actual or threatened, written notice or verbal notice, demand or claim from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority authority, or any third party, nor is Seller aware of any circumstances that could give rise to any notice, demand or claim, concerning any petroleum product or other hazardous substance Hazardous Substance release, discharge or seepage. For purposes of As used in this SubsectionAgreement, the term “hazardous substancesHazardous Substances” shall mean any substance or material which is listed, defined or deemed to be a waste, contaminant or pollutant, or substance or material potentially harmful, hazardous or toxic to human health or safety or the environment pursuant to any Environmental Laws, including but without limitation, petroleum, petroleum based product and any petroleum constituent. To Seller’s best knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for . Seller has received no written notice that the Property (the “Warranties”). The representations and warranties or any portion thereof contains any form of Seller shall survive Closing for a period of one (1) yeartoxic mold.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease, with the exception of the Temporary Emergency Water Service Agreement dated October 20, 2010 by and between Seller and City and County of Butt-Silver Bow, Montana;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the property is to be improved with approximately 45,826 square feet of improvements and fixtures attached thereto, together with paved and concrete parking and (vi) The total scheduled annual base rent (the “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $697,209.00 per annum;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations; and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances encumbrances, except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the LeaseExceptions. The Property constitutes one or more separate a single tax parcels parcel for purposes of ad valorem taxation, and no improvements are situated on such tax parcel, other than the Improvements;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease, which will be terminated on the Closing Date. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; , and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ig) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this SubsectionSubsection (g), “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws; and
(h) As used in this Agreement, the words “Seller's knowledge” or words of similar import shall be deemed to mean, and shall be limited to, the actual (as distinguished from implied, imputed or constructive) knowledge of Akomea Xxxx-Xxxxxx, without any duty of inquiry or investigation, and shall not be construed to refer to the knowledge of any other officer, agent or employee of Seller or any affiliate thereof. To the extent Buyer discovers prior to the Closing any inaccuracy in a representation and warranty of Seller in this Agreement and the Closing occurs, such representation and warranty shall be deemed modified to reflect the inaccuracy discovered by Buyer. Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller set forth in this Agreement shall survive the Closing for a period of one six (16) yearmonths and any action brought on Seller’s representations and warranties shall be commenced within said six (6) month period or shall be forever barred and waived. In no event shall Buyer be entitled to make a claim for breach of such representations or warranties and Seller shall have no liability in connection therewith (i) unless and until the aggregate amount of all such claims exceeds $5,000.00 or (ii) for any amount in excess of $1,000,000.00 in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Kulicke & Soffa Industries Inc)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, The Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as the basis for the undertakings of the date hereof and as of the Closing Date with respect to the Property:Purchaser contained in this Agreement.
(a) Seller is a banking corporation, duly organized (or formed)organized, validly existing and in good standing under the laws of its state the State of organization_, and has all necessary right and lawful authority to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder, and is duly qualified to transact business and hold property in the State.
(b) During the term of this Agreement, Seller will preserve and keep in full force and effect its existence as a banking corporation or shall do all things necessary to have all of its obligations hereunder assumed by its successors and permitted assigns, which shall preserve and keep in full force and effect their existence and their qualification to do business in the State to the extent required by law, such qualification is necessary for the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all performance of Seller’s obligations hereunder.
(c) Seller is authorized under its charter and by-laws and appropriate corporate resolution to enter into this Agreement and the transactions contemplated hereby.
(d) This Agreement and the Trust Agreement constitute legal, valid and binding obligations of the Seller enforceable in accordance with their respective terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights, by applicable laws which may limit the availability of remedies hereunder or thereunder or by equitable principles.
(e) Seller shall cause to be executed and thereunder. Neither delivered to Purchaser an opinion of its counsel, in substantially the form attached hereto as Exhibit B-2, concurrently with the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of Certificates under the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;Trust Agreement.
(f) With respect to The execution, delivery and performance by the Leases: (i) Seller of this Agreement and the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies transactions contemplated herein will not violate any provision of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Applicable Law or any extension judgment, order, decree, rule or renewal regulation binding upon it the violation of which would have a materially adverse effect upon the Seller, the Buses or the operation thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;.
(g) There are no occupancy rightsactions, leases suits or tenancies affecting proceedings pending against the Property Seller or, to the knowledge of the Seller, threatened against the Seller before or by any court, governmental body or agency or other than tribunal or authority which would, if adversely determined, have a materially adverse effect on the Lease. authority or ability of the Seller to perform its obligations under this Agreement, or which question the legality, validity or enforceability hereof.
(h) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby is subject to nor the fulfillment of or compliance with the terms and conditions of this Agreement conflicts in any first right of refusal material respect with or other purchase right results in favor a material breach of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Propertyterms, conditions or provisions of any restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitutes a default thereunder, or results in the creation or imposition of any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale lien, charge or encumbrance of all any nature whatsoever upon any of the properties or substantially all the assets of the Seller, or (ii) if such transaction does constitute a sale of all or substantially all under the assets terms of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearforegoing.
Appears in 1 contract
Samples: Conditional Purchase Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State state in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenant, if any, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation threatened litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property (which has not been cured) and Seller does not have has no knowledge of any such violationsviolation;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default by landlord under the Lease or any pending dispute between the landlord and Tenant thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;.
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property by Seller in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws; and As used in this Agreement, the words “Seller's knowledge” or words of similar import shall be deemed to mean, and shall be limited to, the actual (as distinguished from implied, imputed or constructive) knowledge of Akomea Xxxx-Xxxxxx, without any duty of inquiry or investigation, and shall not be construed to refer to the knowledge of any other officer, agent or employee of Seller or any affiliate thereof. Seller represents to Buyer that Akomea Xxxx-Xxxxxx is the Seller’s representative that has the most knowledge about the ownership, operation and management of the Property. To the extent Buyer discovers prior to the Closing or acquires actual knowledge of any inaccuracy in a representation and warranty of Seller in this Agreement and the Closing occurs, such representation and warranty shall be deemed modified to reflect the inaccuracy discovered by Buyer. Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller set forth in this Agreement shall survive the Closing for a period of one six (16) yearmonths and any action brought on Seller’s representations and warranties shall be commenced within said six (6) month period or shall be forever barred and waived. In no event shall Buyer be entitled to make a claim for breach of such representations or warranties and Seller shall have no liability in connection therewith (i) unless and until the aggregate amount of all such claims exceeds $50,000.00 or (ii) for any amount in excess of $500,000.00 in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Finance Trust, Inc)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;; and the driveway, drainage and reciprocal easement agreements of record with the abutting landowners.
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is as set forth on Exhibit A2the initial term of the Lease will be $275,000.00 per annum with ten percent (10.0%) increases every five (5) years;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease, other than, to the extent applicable, the driveway, drainage and reciprocal easement agreements of record with the abutting landowners. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal other than in favor of Tractor Supply Company or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one six (16) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property Property, and as of the Closing, such title will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is will be the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) The total scheduled annual base rent (the rent “Annual Net Rent”) for each Property is as set forth on Exhibit A2the current term of the Lease will be $149,949.84 per annum with ten percent (10%) increases every five (5) years;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;; and
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer SELLER represents to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 BUYER as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Propertyfollows:
(a) Seller SELLER is a corporation duly organized (or formed)organized, validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller of Kansas.
b) SELLER has the all requisite power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereundercarry on its business as presently conducted. Neither the The execution and delivery of this Agreement does not, and all closing documents to the fulfillment of and compliance with the terms and conditions hereof will not violate, or be executed by Sellerin conflict with, nor the performance any material provision of the obligations of Seller hereunder SELLER’s governing documents, or thereunder will result in the violation any material provision of any law agreement or instrument to which SELLER is a party or by which it is bound, or any provision Law applicable to SELLER.
c) This Agreement constitutes SELLER’s legal, valid and binding obligation, enforceable in accordance with its terms, subject, however, to the effects of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigationbankruptcy, condemnation proceeding or tax appeals affecting Seller or the Property insolvency, reorganization, moratorium and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits laws for the Property;protection of creditors, as well as to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereofPermitted Encumbrances, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable the Leases will be conveyed to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property BUYER at Closing free and clear of all liens and encumbrances except arising by, through or under SELLER but not otherwise.
e) SELLER has not incurred any liability, contingent or otherwise, for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one brokers’ or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect finders’ fees relating to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to transactions contemplated by this Agreement for which BUYER shall have any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;responsibility whatsoever.
(gf) There are no occupancy preferential rights, leases suits, actions, claims, investigations, proceedings or tenancies affecting demands pending (or, to best of SELLER’s knowledge, threatened) against SELLER, or the Property other than Leases, which have not been disclosed to BUYER by SELLER, claiming relief which, if granted would be likely to have an adverse effect on the Lease. Neither this Agreement nor value or operation of the Leases, or that would prevent the consummation of the transactions transaction contemplated hereby hereby. SELLER has paid all invoices and lease bonuses in full for the Leases and the work performed to acquire same.
g) SELLER is subject in material compliance with any and all County, State and Federal laws, rules and regulations affecting the Leases, except where failure to any first right of refusal or other purchase right in favor of any other person or entity; comply would not have a material adverse effect on the Leases.
h) SELLER has all requisite power and apart from authority to enter into this Agreement, Seller has not entered into any written agreements for to convey the Leases on the terms described in this Agreement and to perform its obligations under this Agreement.
i) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LEASES ARE TO BE SOLD AS IS, AND SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED IN FACT OR BY LAW, EXCEPT THAT SELLER HEREBY WARRANTS TITLE TO THE LEASES SPECIALLY AGAINST THE CLAIMS OF ALL PERSONS CLAIMING BY, THROUGH, OR UNDER SELLER AND NOT OTHERWISE.
j) There are no operating agreements, unit agreements, tax partnership agreements, sales contracts, calls on production, options to purchase production, gathering, compression, treating or sale of the Property, transportation agreement or any interest therein other agreements which would be binding on Buyer, the Leases or the production therefrom after the Closing, except those identified on Exhibit “E” attached hereto and made a part hereof. Neither Seller nor the other parties thereto is in default under any such agreement.
k) SELLER has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all no debts, obligations or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets liabilities of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability kind due and owning with respect to the period prior to the Leases (other than those that will be fully released or satisfied before Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, and there are no underground storage tanks located on bankruptcy or reorganization proceeding pending against or being contemplated by SELLER.
l) The Pxxxxxxxx Drilling Contract is valid and enforceable according to its terms. No claim has been made or, to the Property;
(j) Exhibit I attached hereto knowledge of SELLER, is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearthreatened with respect thereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Voyager Oil & Gas, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and Permitted Encumbrances;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for the Lease and Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) except as otherwise disclosed on the respective Punch-List for each Property (if any), Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale transfer and purchase acquisition of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the applicable Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property which at the Closing will be free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s actual knowledge, there are no underground storage tanks located on the Property;; and
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one six (16) yearmonths.
Appears in 1 contract
Samples: Acquisition Agreement (American Realty Capital Properties, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the each Property:
(a) Seller is a limited liability company duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Except for any tax appeals and/or contests initiated by Seller and/or Tenants, if any, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation litigation, condemnation proceeding or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the PropertyProperty and Seller has no knowledge that the Property may be rezoned;
(c) Seller has not entered into any leases, subleases, contracts, subcontracts licenses or other agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLeases and the agreements referenced on Exhibit J annexed hereto;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violationsviolations and (ii) any third party that the Property or the current use thereof violates any private covenant, restriction, easement or encumbrance and Seller does not have any knowledge of any such violation;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements, except as set forth in Schedule 11(f)(iv) attached hereto; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing, except as set forth in Schedule 11(f)(vi) attached hereto; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2Schedule 11(f)(vii) attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(g) Attached hereto as Exhibit A-4 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(h) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein therein, which has not been terminated;
(hi) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ij) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jk) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(l) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(m) There presently exists no unrestored casualty or condemnation affecting the Property;
(n) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder; and
(o) With respect to the Loan: (i) attached hereto as Exhibit K is a complete list of the Loan Documents; (ii) the Loan Documents are valid and in full force and effect on the date hereof; and (iii) to Seller’s knowledge, no event of default has occurred and is continuing, nor, to Seller’s knowledge, has any material event or omission occurred which, with the giving of notice or the lapse of time, or both, would constitute an event of default by Seller thereunder. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the necessary power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s 's obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseLease and Permitted Exceptions;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s 's interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) to Seller's knowledge, the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the total scheduled annual base rent (the “Annual Net Rent”) for each Property the initial term of the Lease is as set forth $392,700.00 per annum with two percent (2%) annual increases, commencing on Exhibit A2May 1, 2011;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entityentity granted by Seller or to which Seller is a party; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;; and
(i) To Seller’s 's knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s 's knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Except as disclosed on Exhibit H, Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have actual knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the LeasesLease: (i) to Seller’s actual knowledge, the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and and, to Seller’s actual knowledge, there is no default thereunder; (iii) to Seller’s actual knowledge, no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) to Seller’s actual knowledge, Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the total scheduled annual base rent (the “Annual Net Rent”) for each Property the current year of the Lease (October 1, 2012 through September 30, 2014) is as set forth on Exhibit A2$1,170,400.00 per annum with twenty-five cent ($0.25) increases per square foot per year;
(gf) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ig) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, there are no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;; and
(jh) Exhibit I attached hereto is a trueTo Seller’s actual knowledge, correct and complete listing Seller has provide Buyer with copies of all warranties in effect for the Property in Seller’s possession or reasonable control. For purposes of this Agreement, the phrase “to Seller’s knowledge,” “to Seller’s actual knowledge,” “Seller has no actual knowledge” or phrases of similar import shall mean the actual, not constructive or imputed, knowledge of Xxxxx Xxxxxxxx, without any obligation to make any independent investigation of the matters being represented and warranted, or to make any inquiry of any other persons, or to search or examine any files, records, books, correspondence and the like. In no event shall Xxxxx Xxxxxxxx be personally liable for any of the obligations of Seller under this Agreement. Further, to the extent Buyer discovers prior to the Closing any inaccuracy in a representation and warranty of Seller in this Agreement and the Closing occurs, such representation and warranty shall be deemed modified to reflect the inaccuracy discovered by Buyer. Seller shall have the right to revise any of the representations and warranties made in this Section 11 from time to time prior to the Closing Date to reflect any changes that occur as a result of facts or circumstances outside of the reasonable control of Seller or that it obtains knowledge of after the Effective Date (the collectively, “WarrantiesChanged Circumstances”) by delivering a revised written statement of representations and warranties to Buyer at any time prior to Closing (a “Revised Disclosure Schedule”), provided however, “Changed Circumstances” shall not include any fact or circumstance resulting from an intentional act or omission by Seller. Buyer shall have the right to review the revised Seller Disclosure Schedule for a period of three (3) business days after its receipt thereof. To the extent such Changed Circumstances would materially and adversely impact Net Operating Income of the Property or Buyer’s ability to own, operate and develop the Property, then, prior to the expiration of such three (3) business day period, Buyer shall deliver written notice (“Changed Circumstance Objection Notice”) to Seller that Buyer objects to the Changed Circumstance(s) set forth in the revised statement of representations and warranties, and Seller shall be permitted to either (a) take such corrective action as is necessary to resolve the Changed Circumstances in such a manner as to permit Buyer to develop, construct, or operate the Property (provided that Seller shall be required to notify Buyer of its intended course of action), or (b) to notify Buyer that Seller is unable or unwilling to take such corrective action. If Seller is either unwilling or unable to cure or satisfy the situation which created the inaccurate representation, then Buyer may terminate this Agreement within three (3) days thereafter, in which event the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further liability to the other hereunder except as specifically set forth herein. In the event that Buyer fails for any reason to deliver a Changed Circumstance Objection Notice within such three (3) business day period, then (i) the representation or warranty in question shall be deemed modified based upon the Changed Circumstances, and (ii) such Changed Circumstance(s) shall be deemed to constitute part of the disclosures required to be made by Seller pursuant to this Agreement. The representations and warranties of Seller shall survive Closing for a period of six (6) months. Notwithstanding anything to the contrary contained herein, Buyer shall not bring a claim alleging a breach of one or more of Seller’s representations and warranties to the extent that Buyer’s damages related thereto are not at least FIFTY THOUSAND DOLLARS (1$50,000) yearin the aggregate, and Seller’s maximum liability pursuant to this Section 11 shall not in any event exceed THREE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($325,000).
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any actual knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Leases and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any written notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have actual knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-2 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases.
(g) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and and, to Seller’s actual knowledge, there is no default thereunder; (iii) except as disclosed to Buyer, no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) except as shown on the rent Rent Roll (as defined herein), Tenant is not entitled to rental concessions or abatements for each Property is any period subsequent to the scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no actual knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(gh) Attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(i) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal first refusal, right of first offer or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ij) To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any written notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this SubsectionSection 11(j), “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s actual knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, there are no underground storage tanks located on the Property;
(jk) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(l) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(m) There presently exists no unrestored casualty or condemnation affecting the Property;
(n) Attached hereto as Exhibit G is a true, correct and complete list of the Loan Documents. Except as set forth on Exhibit G, the Loan Documents have not been amended, supplemented, assigned by borrower or otherwise modified. The Loan Documents are valid and in full force and effect on the date hereof. To Seller’s actual knowledge, no event of default has occurred and is continuing, nor, to Seller’s actual knowledge, has any material event or omission occurred which, with the giving of notice or the lapse of time, or both, would constitute an event of default by Seller thereunder;
(o) Xxx Xxxxxxx is familiar with the subject matter of Seller’s representations and warranties contained in this Agreement;
(p) Each Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of Seller shall survive Closing for a period of one (1) year.the Guaranty; and
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement The Seller warrants and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes represents the following representations and warranties as it relates to Buyer as of the date hereof and as of the Closing Date with respect to the PropertySeller and/or its business:
(a) Seller is a corporation duly organized (or formed), and validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. of Florida and Seller has the full power and authority to execute and to deliver this Agreement and all closing documents to be executed by Sellerrelated documents, and to perform all carry out the transaction contemplated herein. This Agreement is valid, binding and enforceable against Seller and Guarantors in accordance with its terms, except as such enforceability may be limited by creditors' rights laws and applicable principles of Seller’s obligations hereunder and thereunderequity. Neither the The execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance consummation of the obligations of Seller hereunder or thereunder will transaction contemplated herein do not result in a breach of the terms and conditions of nor constitute a default under or violation of any law Seller's organizational documents or any provision of the organizational documents of law, regulation, court order, mortgage, note, bond, indenture, agreement license or other instrument or obligation to which Seller is now a party or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;or any of the assets of Seller may be bound or affected.
(b) Seller That it is the owner of and has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or good and marketable title to all the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification assets specifically enumerated in the current subdivisionattached scheduled of assets and/or referred to herein, site planfree and clear from all liens, zoning or other land use permits for debts, claims, liabilities and/or encumbrances (except the Propertydebts and obligations to creditors to be set forth in the list of creditors referred to in paragraph 5) and further that the business of Seller is a going solvent business;
(c) Seller It has not entered into any contractsno contract relating to the business, subcontracts or agreements affecting except as shown in the Property which will be binding upon Buyer after the Closing other than the Leaseattached schedule of assets;
(d) Except for violations cured There are no judgments, liens, claims, actions, or remedied on proceedings threatened or before the date hereofpending against it anywhere, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violationsexcept as specifically disclosed in EXHIBIT "C" attached hereto;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule regulation, statute or regulation ordinance, whether threatened to pending, associated with its business and/or the operation thereof, and including but not limited to any laws, regulations, statutes or ordinances relating to consumer and/or environmental matters;
(f) It has not used any other business name or address within five (5) years of the date of this agreement;
(g) The property to be transferred is now and at the time of closing will be located at Seller's place of business and will not be removed therefrom without the written consent of the Buyer and all equipment, fixtures and tangible assets will be in good working order and repair and that any hidden and/or latent defects associated therewith and known to Seller or Guarantors will be to Buyer disclosed in Exhibit "A";
(h) That all of the books, records and financial statements and documents relating to the business of the Seller, including but not limited to information and documents relating to sales volume, accounts receivable and payable, expenses, income and assets valuation are true and accurate and represent additional inducement for the Buyer to enter into this transaction. Furthermore, all of the books and records maintained by Seller with respect to its ownership and/or operation of the Seller's Assets are true and correct in all material respects;
(i) That the lease applicable to the Property which regulates or controls matters relating to location of the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to business will be hazardous or toxic will be performed pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Propertyits terms and conditions;
(j) Exhibit I attached hereto is All tax returns, reports and filings of any kind or nature required to be filed by Seller prior to Closing with respect to all federal, state and local income, payroll, withholding, excise, sales, use, real and personal property, use and occupancy, business and occupation, mercantile, and franchise taxes in connection with the Lease, Seller's operation of the Facility, and its ownership of the Personal Property and Intellectual Property have been properly completed and timely filed in material compliance with all applicable requirements and all taxes or other similar obligations, which are due and payable by Seller have been timely paid and/or will be timely filed when due in the case of such filings which are due for year end. There are no tax liens on any of the Seller's, Assets except liens with respect to real property taxes not yet due, Seller has no knowledge of any audit, investigation or other proceeding which could result in a truetax lien on any of the Seller's Assets. If any tax returns or filings have not been completed prior to closing, correct Seller will complete them within 120 days after the closing.
(k) Except as disclosed in EXHIBIT "D", the employees of the Facility are not members of a labor union nor subject to any collective bargaining agreement with respect to their employment at the Facility nor has any notice of any kind been received by the Seller relating to any vote to unionize Seller's business. There are no labor disputes or grievances pending with respect to the operations at the Facility, except as otherwise provided in EXHIBIT "D". For purposes hereof, a labor dispute or grievance shall be deemed to be pending if the same has been served on Seller or Seller has otherwise been advised either orally or in writing of the pendency thereof. There are no employment contracts of any kind or nature involving the Seller and complete listing any officer, director, shareholders and/or employee of all warranties Seller.
(l) No representation or warranty by Seller contained in effect for this Agreement and no statement contained in any certificate, list, exhibit, or other instrument furnished or to be furnished to Buyer pursuant hereto, or in connection with the Property (transaction contemplated hereby, contains or will contain any untrue statement of a material fact, or omits or will omit to state any material facts which are necessary in order to make the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) yearstatements contained herein or therein not misleading.
Appears in 1 contract
Samples: Agreement for Sale of Business Assets (Fix Corp International Inc)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) : Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) . Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) . Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) . Seller has marketable fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the LeaseLeases. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property(x) commenced a voluntary case, or had entered against it a petition, for relief under any interest therein which has not been terminated;
federal bankruptcy act or any similar petition, order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, (hy) The transactions contemplated hereby either (i) will not constitute caused, suffered or consented to the appointment of a sale of receiver, trustee, administrator, conservator, liquidator or similar official in any federal, state or foreign judicial or non-judicial proceeding, to hold, administer and/or liquidate all or substantially all the assets of Sellerits property, or (iiz) if such transaction does constitute a sale made an assignment for the benefit of all or substantially all creditors. Except as to the assets occupancy right of any Sellertenants as set forth in the Leases, Seller shall provide has granted no options or rights of first refusal to Buyer at Closing an excise tax lien waiver acquire any interest in the Property to a tenant or such any other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) party. To Seller’s knowledge, except as set forth in the environmental reports previously to be delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”), to include methamphetamine contamination, manufacturing, or storage on the property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct . The Leases that will be delivered to Buyer as part of the Due Diligence Materials are true and complete listing accurate copies of all warranties the leases in effect for the Property (the “Warranties”)Property. The representations and warranties of Seller shall survive Closing for a period of six (6) months (the “Survival Period”). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the "Purchase Documents"), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller with respect to the alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, "Seller's Undertakings") shall (A) be deemed waived unless Buyer has both delivered to Seller written notice that Buyer is seeking recourse under Seller's Undertakings (the "Recourse Notice") after the Closing Date but prior to the expiration of the Survival Period, and filed suit with respect thereto not more than one month after the expiration of the Survival Period, and (B) be limited to an amount not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate for all recourse of Buyer under the Purchase Documents. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than Twenty-Five Thousand Dollars ($25,000), in which event the full amount of such valid claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given on or before the expiration of the Survival Period, or for which such specific suit has not been commenced not more than one month after the expiration of the Survival Period, shall terminate and cease to be of any force or effect, and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within ten (10) business days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) yearterminate this Agreement, in which case the Xxxxxxx Money shall be immediately returned to Buyer, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transaction without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transaction without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer, any of Buyer Representatives or any of Buyer’s agents, employees or contractors upon the Property, Buyer shall not have the right to right to terminate this Agreement (nor any other right or remedy on account thereof) and Buyer’s indemnification contained in Section 6(c) above, shall apply. Anything contained herein to the contrary notwithstanding but in all events subject to the last sentence of Section 11(b), if (A) Buyer has knowledge of any inaccuracy in any of Seller’s Undertakings, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (B) any information contained in any material provided to Buyer by Seller or received by Buyer from any third party (including without limitation any report provided to Buyer by any contractor or consultant engaged by Buyer in connection with Buyer’s investigation of the Property) is in any way inconsistent with any of Seller’s Undertakings, whether or not actually known to Buyer, and notwithstanding clause (A) and clause (B) Buyer nonetheless proceeds with the Closing, then Seller’s Undertakings shall be deemed qualified and amended or modified to the full extent of Buyer’s knowledge and such inconsistent information, Buyer shall be deemed to have accepted and approved Seller’s Undertakings as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. Buyer agrees to first seek recovery under any applicable insurance policies, Operating Agreements, warranties, guaranties and leases prior to seeking recovery from Seller. Seller shall not be liable to Buyer if Buyer’s claim is satisfied from such insurance policies, Operating Agreements, warranties, guaranties or leases and Buyer hereby waives any and all rights of subrogation with respect thereto. All references herein to “Seller’s knowledge” shall be deemed to mean the actual knowledge of Seller’s Representative’s Full Name. Notwithstanding the foregoing, Seller’s Representative’s First and Last Name shall have no personal liability for Seller’s obligations hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the PropertyDate:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. The execution, delivery and performance of this Agreement does not require the consent or approval of any court, administrative or governmental authority and does not result in the creation or imposition of any lien or equity of any kind whatsoever upon, or give to any other person any interest or right (including any right of termination or cancellation) in or with respect to, any material agreement to which Seller is a party or the business or operations of Seller or any of its properties or assets;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Attached hereto as Exhibit J is a true, correct and complete list of all contracts and agreements relating to the operation or maintenance of the Property (the “Contracts”). Other than the Leases and Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the LeaseClosing;
(d) Except for violations which have been cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations, and the Property shall be delivered free from all violations at Closing;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the each Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) Attached hereto as Exhibit A-2 is a true, correct and complete list of all leases and subleases affecting the Property, including all amendments to such leases and subleases.
(g) With respect to the Leaseseach Lease: (i) the Leases Lease forwarded to Buyer under Section 6(b)(i6(b) are is a true, correct and complete copies copy of the LeasesLease; (ii) the Leases are Lease is in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases Lease or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) intentionally deleted; (vi) Tenant is not entitled to rental concessions or abatements for any period subsequent to the rent for each Property is scheduled date of Closing; (vii) Tenant has not prepaid any rents as of the date hereof nor has Tenant delivered a security deposit, letter of credit or other security in connection with the Lease, except as set forth on Exhibit A2K attached hereto; (viii) Tenant has not made any request for any assignment, transfer, or subletting in connection with all or a portion of the premises demised to Tenant which is presently pending or under consideration by Seller; (ix) all specified work required to be performed by the landlord under the Lease up to the date of Closing has been completed or will be completed, at Seller’s expense, prior to the Closing; (x) Seller has not received and has no knowledge of any pending notices from Tenant electing to vacate the premises leased to Tenant or exercising any right of Tenant to terminate the Lease; and (xi) Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof;
(gh) Attached hereto as Exhibit A-3 and made a part hereof is a true, correct and complete copy of the rent roll for the Property (the “Rent Roll”);
(i) There are no occupancy rights, leases or tenancies affecting the Property other than the LeaseLeases. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of first refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(hj) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(ik) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”)) and no adverse environmental condition exists at the Property. Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority (1) concerning any petroleum product or other hazardous substance discharge or seepageseepage at, on, around or under the Property, or migrating from the Property, in violation of any Environmental Laws or; (2) of any pending actions, suits, claims and/or proceedings claiming that Seller, any Tenant or the Property is in violation of any Environmental Laws. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(jl) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”);
(m) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(n) There presently exists no unrestored casualty or condemnation affecting the Property;
(o) With respect to each Guaranty: (a) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (b) the Guaranty is in full force and effect and there is no default thereunder; and
(p) To Seller’s actual knowledge and except for Seller’s confidential materials, Seller has provided Buyer with access to all certificates, licenses, permits, Leases, Contracts, books, records, documents and information relating to the Property and the ownership and operation thereof which are in the possession of Seller. Seller represents and warrants that such Due Diligence Materials are true and correct copies of the same materials in Seller’s files. The representations and warranties of Seller shall survive Closing for a period of one nine (19) yearmonths.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free subject to any deed restrictions, easements, rights of way and clear other matters of all liens record, and encumbrances except for Permitted Exceptions zoning regulations affecting the Property and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies copy of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2A;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Representations by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) at the time of Closing, Seller has no shall not have outstanding obligation obligations to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all of the warranties in effect for the Property (the “Warranties”)Property. The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
