Representations by Sellers. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Sellers make the following representations and warranties to Buyer as of the date hereof and as of the Closing Date, which shall survive the Closing for a period of one (1) year. (a) Sellers are duly organized, validly existing and in good standing under the laws of the State of Indiana. Sellers are authorized to consummate the transaction set forth herein and fulfill all of their respective obligations hereunder and under all closing documents to be executed by Sellers, and have all necessary power to execute and deliver this Agreement and all closing documents to be executed by Sellers, and to perform all of Sellers’ obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Sellers, nor the performance of the obligations of Sellers hereunder or thereunder will result in the violation of any applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) or any provision of the organizational documents of or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Sellers are bound; (b) Sellers, alone, have, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Properties 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 as to the Real Property. (c) Sellers have not received any written notice of any threatened, current or pending litigation, action, proceeding (including municipal, health, administrative, or condemnation proceedings), tax appeals (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Sellers, any tenant of the Property, or 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 Sellers 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. (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 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 a Residential Care Facility (as to LaPorte, Hobart, Tanglewood and Eastlake) and Home for the Aged (as to Niles) have been paid for in full, and are, and as of Closing will be, in full force and effect; provided, however, that, subject to the other terms of this Agreement, Buyer or its management agent shall be responsible for obtaining Operating Licenses and other Regulatory Approvals necessary for the operation of the Facilities by Buyer or Buyer’s management agent after the Closing. 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 holding an Operating License is as set forth on Schedule 1. 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 Sellers’ knowledge, contemplated to reduce the number of licensed or certified beds of such Facility. (ii) 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 has complied with, and to the knowledge of Seller, each Operator has complied with all applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information and Technology for Economic and Clinical Health Act of 2009, and all applicable state privacy Laws, and all applicable regulations promulgated under any such legislation. (e) As used herein, the term “Material Contract” means each of the following: (a) any contract that is not entered into in the ordinary course of business, consistent with past practice, (b) any contract, whether or not entered into in the ordinary course of business, that would require Buyer to expend more than $25,000 annually under such contract (c) any contract that would not be fully performed within six (6) months after such contract is entered into, unless such contract is cancellable without penalty on thirty (30) days or less notice, (d) any administrative services agreement, pharmacy services agreement, or cost-sharing agreement and (e) any lease agreement pursuant to which a vendor occupies space within any Facility.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Representations by Sellers. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property Properties in accordance herewith, Sellers make each Seller individually makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date, which shall survive the Closing for a period of one (1) year.hereof:
(a) Sellers are Seller is duly organizedformed, validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State of Indianain which the Seller’s Property is located. Sellers are authorized to consummate Seller has the transaction set forth herein power and fulfill all of their respective obligations hereunder and under all closing documents to be executed by Sellers, and have all necessary power authority to execute and deliver this Agreement and all closing documents to be executed by SellersSeller, and to perform all of Sellers’ Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by SellersSeller, nor the performance of the obligations of Sellers Seller hereunder or thereunder will result in the violation of any applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) 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 Sellers are 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) Sellers, alone, have, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Properties 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 as to the Real Property.
(c) Sellers have Seller has not received any written notice of any threatened, current or pending litigation, actioncondemnation proceeding or tax appeals affecting Seller or Seller’s Property and Seller does not have any actual knowledge of any pending litigation or tax appeals against Seller or Seller’s Property; Seller has not initiated, proceeding 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 Seller’s Property;
(including municipal, health, administrative, c) Seller has not entered into any contracts or condemnation proceedingsagreements for the providing of goods or services with respect to Seller’s Property which will be binding upon Buyer after the Closing other than the contracts and agreements referenced on Schedule 11(c), tax appeals (or other similar proceedings challenging or seeking annexed hereto which will be assigned to reduce the assessed valuation of the Real Property) or environmental investigations against Sellers, any tenant of the Property, or the Property or in connection with the business operated Buyer 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 Sellers 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.;
(d) Permanent certificates of occupancy and all other licensesWith respect to the Loan, 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 the requisite certificates owners of the local board of fire underwriters Properties contained in the Panama City Portfolio make the following representations and warranties: (or other body exercising similar functions), if any, have been, or i) attached hereto as of Closing will have been, issued for the Improvements which are Schedule 11(d) is a part complete list of the Property, Loan Documents; (ii) the Loan Documents are valid and for the full functioning and operation of the Property and the operation of a Residential Care Facility (as to LaPorte, Hobart, Tanglewood and Eastlake) and Home for the Aged (as to Niles) have been paid for in full, and are, and as of Closing will be, in full force and effecteffect on the date hereof; providedand (iii) to Seller’s actual knowledge, howeverno Event of Default (as defined in the Loan Documents) has occurred and is continuing, thatnor, subject to Seller’s actual knowledge, has any material event or omission occurred which, with the other terms giving of this Agreementnotice or the lapse of time, Buyer or its management agent shall be responsible both, would constitute an Event of Default by Seller thereunder;
(e) Except for obtaining Operating Licenses and other Regulatory Approvals necessary for violations which have been cured or remedied on or before the operation 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 Seller’s Property;
(f) Seller is the sole owner of the Facilities by Buyer leasehold estate, fee simple title, or Buyercondominium interest, as applicable, in Seller’s management agent after Property, and Seller is the sole owner of the entire lessor’s interest in each Lease in effect with respect to Seller’s Property. This subsection 11(f) shall terminate at the Closing. Without limiting the generality of the foregoing:, and Sellers shall have no liability under this subsection 11(f) after Closing;
(g) With respect to each Lease applicable to each Seller’s Property, except as set forth in Schedule 11(g) attached hereto: (i) Each facility operated on the Property (a “Facility”Lease forwarded to Buyer under Section 6(b) is duly licensed as a true, correct and complete copy of the Lease; (ii) to Seller’s actual knowledge, the Lease is in full force and effect and there is no material default thereunder; (iii) no brokerage or leasing commissions or other similar 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 Lease or any extension or renewal thereof; (iv) all tenant improvement work required to be performed by the landlord under applicable laws. The licensed bed capacity the Lease up to the date of each Facility holding an Operating License is Closing has been completed or will be completed, at Seller’s expense, prior to the Closing, except as set forth on Schedule 1. No application 11(g) attached hereto (with Buyer to receive a credit for such unperformed tenant improvement work or for Buyer to assume the obligation to perform such unperformed tenant improvement work, in each case, as set forth on Schedule 11(g) attached hereto); (v) Tenant has been filed to reduce the number of licensed or certified beds of such Facility, to move or transfer the right to not prepaid any and all rents as of the licensed date hereof by more than thirty (30) days nor has Tenant delivered a security deposit, letter of credit or certified beds other security in connection with the Lease, except as set forth on Schedule 11(g) attached hereto; (vi) Tenant has not made any request to Seller for any assignment, transfer, or subletting in connection with all or a portion of such Facility the premises demised to any other locationTenant which is presently pending or under consideration by Seller; (vii) Seller represents and warrants to Buyer that Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof; (viii) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to amend construct at its own expense, any tenant improvement, except as may be set forth in Schedule 11(g) hereto (with Buyer to receive a credit for such unpaid tenant allowance or otherwise change such Facilityunperformed construction work or for Buyer to assume the obligation to pay such unpaid tenant allowance or perform such unperformed construction work, in each case, as set forth on Schedule 11(g) attached hereto); and (ix) the current monthly base rent for the Lease, the annual percentage increase in the base rent and the date of the next increase in base rent are as set forth on Schedule 11(g)-1 attached hereto;
(h) There are no occupancy rights, leases or tenancies affecting Seller’s authorized bed capacity and/or Property other than the number applicable Leases. Seller has not granted any first right of approved bedsrefusal or other purchase right in favor of any other person or entity, except as may be set forth on Schedule 11(h) hereto; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of Seller’s Property, or any interest therein which has not been terminated;
(i) 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;
(j) To Seller’s actual knowledge, Schedule 11(j) attached hereto is a true, correct and complete listing of all material warranties in effect for Seller’s Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(l) With respect to each Guaranty applicable to the Leases on Seller’s Property: (i) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (ii) to Seller’s actual knowledge, the Guaranty is in full force and effect and there is no material default thereunder;
(m) The Ground Leases forwarded to Buyer under Section 6(b) are true, correct and complete copies of the Ground Leases. To Seller’s actual knowledge, the Ground Leases are in full force and effect and there are no proceedings material defaults thereunder;
(n) There are no employees currently employed by Seller at Seller’s Property who will remain employed following the Closing Date. Seller will not enter into any negotiations or actions pending or, execute any contract with a labor union between the date hereof and the Closing; and
(o) With respect to Sellers’ knowledge, contemplated to reduce each Condo Property: (a) Seller is current in the number payment of licensed or certified beds assessments imposed by the board of directors of the condominium association due in respect of such Facility.
(ii) 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 FacilityProperty; (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.
(iiib) Seller has complied with, received no written notice of any increase in assessments or any proposed special assessment in respect of such Property; and to the knowledge of Seller, each Operator (c) Seller has complied with all applicable security and privacy standards regarding protected health information received no written notice claiming a material default or breach by Seller as a unit owner under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information and Technology condominium documents for Economic and Clinical Health Act of 2009, and all applicable state privacy Laws, and all applicable regulations promulgated under any such legislation.
(e) Property. As used herein, the term "Seller’s actual knowledge" means the actual knowledge of Sxxxx Xxxxx, Jxxx Xxxxxx and Sxxxx Xxxxxx and shall not include any imputed or constructive knowledge; and such persons shall not have any personal liability or be obligated to perform any due diligence investigations in connection with making any representations or warranties herein. The representations and warranties of Sellers shall survive Closing for a period of one hundred eighty (180) days after Closing (the “Material Contract” means Survival Period”). If Buyer is aware at Closing or receives any information prior to Closing which indicates that any of Sellers’ representations or warranties in this Agreement are not true as of the Closing and Buyer elects nonetheless to proceed with the Closing, Buyer shall be deemed to have waived any claim for breach of such representation or warranty. In addition, Sellers shall be relieved of any liability for the representations and warranties contained herein with respect to any Ground Lease or any Lease to the extent Buyer has received an estoppel certificate covering the representations and warranties set forth herein from the other party to the Ground Lease or such Lease, as the case may be. LaSalle Medical Office Fund II, a Maryland real estate investment trust, joins herein for the purpose of (but solely for the purpose of) guaranteeing each of the following: (a) any contract that is not entered into in the ordinary course of business, consistent with past practice, (b) any contract, whether or not entered into in the ordinary course of business, that would require Buyer Seller’s obligations to expend more than $25,000 annually survive Closing under such contract (c) any contract that would not be fully performed within six (6) months after such contract is entered into, unless such contract is cancellable without penalty on thirty (30) days or less notice, (d) any administrative services agreement, pharmacy services agreement, or cost-sharing agreement and (e) any lease agreement pursuant to which a vendor occupies space within any Facilitythis Section 11.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)
Representations by Sellers. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the each Property in accordance herewith, Sellers make each Seller makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date, which shall survive the Closing for a period of one (1) year.:
(a) Sellers are duly organizedorganized (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 of Indianain which each Property is located. Sellers are authorized to consummate have the transaction set forth herein power and fulfill all of their respective obligations hereunder and under all closing documents to be executed by Sellers, and have all necessary power authority to execute and deliver this Agreement and all closing documents Closing Documents to be executed by Sellers, and to perform all of Sellers’ obligations hereunder and thereunder. Neither To the actual knowledge of Sellers, neither the execution and delivery of this Agreement and all closing documents Closing Documents to be executed by Sellersany Seller, nor the performance of the obligations of Sellers hereunder or thereunder will result in the violation of any applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) law or any provision of the organizational documents of Sellers or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Sellers are any Seller is bound;
(b) Sellers, alone, have, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Properties 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 as to the Real Property.
(c) Sellers have not No Seller has received any written notice of any threatened, current or pending litigation, action, proceeding (including municipal, health, administrative, or condemnation proceedings), tax appeals (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Sellers, any tenant of the Property, or 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 or condemnation proceeding affecting any Seller or any Property and Sellers do not have any knowledge of any pending litigation or condemnation proceeding against any Seller or any Property; no Seller has initiated, nor is any Seller participating in, any action for a change or modification in no way release Sellers or the current operators of the Premises from responsibility subdivision, site plan, zoning or other land use permits for any such claimsProperty;
(c) Except for the Leases that Tenant will execute at Closing and any Permitted Exceptions, and there are no leases, occupancy rights, tenancies, or unrecorded restrictions, agreements or encumbrances affecting any Property to which any Seller is a party which will be binding upon 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 after Closing.;
(d) Permanent certificates of occupancy and all other licensesExcept for violations cured or remedied on or before the date hereof, 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 the requisite certificates of the local board of fire underwriters no Seller has received any written notice from (or other body exercising similar functions)delivered any notice to) (i) any governmental authority regarding any violation of any law applicable to any Property and no Seller has knowledge of any such violations and (ii) any third party that any Property or the current or proposed use thereof violates any private covenant, if anyrestriction, have beeneasement or encumbrance, or as of Closing will have beenin each case, issued for which would materially adversely affect either the Improvements which are a part of the Property, and for the full functioning use and operation of any Property for its present use or the Property and the operation value of a Residential Care Facility any Property;
(as to LaPorte, Hobart, Tanglewood and Eastlakee) and Home for the Aged (as to Niles) have been paid for in full, and are, and as of Closing will be, in full force and effect; provided, however, that, subject With respect to the Leases, no brokerage or leasing commissions or other terms compensation is or will be due or payable by Buyer to any person, firm, corporation or other entity engaged by or on behalf of this Agreement, Buyer any Seller with respect to or its management agent shall be responsible for obtaining Operating Licenses and other Regulatory Approvals necessary for the operation on account of the Facilities by Buyer Leases or Buyer’s management agent after the Closing. Without limiting the generality of the foregoing:any extension or renewal thereof;
(if) Each facility operated on the Property (a “Facility”) is duly licensed as required under applicable laws. The licensed bed capacity of each Facility holding an Operating License is To Sellers’ actual knowledge, except as set forth on Schedule 1. No application has in the Environmental Reports, no hazardous substances have been filed to reduce the number of licensed or certified beds of such Facilitygenerated, to move or transfer the right to any and all of the licensed or certified beds of such Facility to any other locationstored, released, or disposed of on or about any Property by any Seller, its agents, employees, or invitees in violation of any law, rule or regulation applicable to amend such Property which regulates 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 Sellers’ knowledge, contemplated to reduce the number of licensed or certified beds of such Facility.
(ii) 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 controls matters 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 environment or public health or equivalent and all other safety (collectively, “Environmental Laws”). No Seller has received any written notice from (nor delivered any notice to) any federal, state, county, municipal or focal other governmental authoritiesdepartment, including without limitation those relating agency or authority concerning any petroleum product or other hazardous substance discharge or seepage in violation of Environmental Laws. For purposes of this Section 11(f), “hazardous substances” shall mean any substance or material which is defined or deemed to such Facility’s physical structure and environment, licensing, quality and adequacy of medical care, distribution be hazardous 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 has complied with, and to the knowledge of Seller, each Operator has complied with all applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information and Technology for Economic and Clinical Health Act of 2009, and all applicable state privacy Laws, and all applicable regulations promulgated under any such legislation.
(e) As used herein, the term “Material Contract” means each of the following: (a) any contract that is not entered into in the ordinary course of business, consistent with past practice, (b) any contract, whether or not entered into in the ordinary course of business, that would require Buyer to expend more than $25,000 annually under such contract (c) any contract that would not be fully performed within six (6) months after such contract is entered into, unless such contract is cancellable without penalty on thirty (30) days or less notice, (d) any administrative services agreement, pharmacy services agreement, or cost-sharing agreement and (e) any lease agreement toxic pursuant to which a vendor occupies space within any Facility.Environmental Laws. To Sellers’ actual knowledge, there are no underground storage tanks located on any Property;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lincoln Educational Services Corp)
Representations by Sellers. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property Properties in accordance herewith, Sellers make each Seller individually makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date, which shall survive the Closing for a period of one (1) year.hereof:
(a) Sellers are Seller is duly organizedformed, validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State of Indianain which the Seller’s Property is located. Sellers are authorized to consummate Seller has the transaction set forth herein power and fulfill all of their respective obligations hereunder and under all closing documents to be executed by Sellers, and have all necessary power authority to execute and deliver this Agreement and all closing documents to be executed by SellersSeller, and to perform all of Sellers’ Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by SellersSeller, nor the performance of the obligations of Sellers Seller hereunder or thereunder will result in the violation of any applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) 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 Sellers are 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) Sellers, alone, have, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Properties 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 as to the Real Property.
(c) Sellers have Seller has not received any written notice of any threatened, current or pending litigation, actioncondemnation proceeding or tax appeals affecting Seller or Seller’s Property and Seller does not have any actual knowledge of any pending litigation or tax appeals against Seller or Seller’s Property; Seller has not initiated, proceeding 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 Seller’s Property;
(including municipal, health, administrative, c) Seller has not entered into any contracts or condemnation proceedingsagreements for the providing of goods or services with respect to Seller’s Property which will be binding upon Buyer after the Closing other than the contracts and agreements referenced on Schedule 11(c), tax appeals (or other similar proceedings challenging or seeking annexed hereto which will be assigned to reduce the assessed valuation of the Real Property) or environmental investigations against Sellers, any tenant of the Property, or the Property or in connection with the business operated Buyer 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 Sellers 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.;
(d) Permanent certificates of occupancy and all other licensesWith respect to the Loans, 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 the requisite certificates Sellers of the local board of fire underwriters Encumbered Properties make the following representations and warranties: (or other body exercising similar functions), if any, have been, or i) attached hereto as of Closing will have been, issued for the Improvements which are Schedule 11(d) is a part complete list of the Property, Loan Documents; (ii) the Loan Documents are valid and for the full functioning and operation of the Property and the operation of a Residential Care Facility (as to LaPorte, Hobart, Tanglewood and Eastlake) and Home for the Aged (as to Niles) have been paid for in full, and are, and as of Closing will be, in full force and effecteffect on the date hereof; providedand (iii) to Seller’s actual knowledge, howeverno Event of Default (as defined in the Loan Documents) has occurred and is continuing, thatnor, subject to Seller’s actual knowledge, has any material event or omission occurred which, with the other terms giving of this Agreementnotice or the lapse of time, Buyer or its management agent shall be responsible both, would constitute an Event of Default by Seller thereunder;
(e) Except for obtaining Operating Licenses and other Regulatory Approvals necessary for violations which have been cured or remedied on or before the operation 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 Seller’s Property;
(f) Seller is the sole owner of the Facilities by Buyer leasehold estate or Buyerfee simple title, as applicable, in Seller’s management agent after Property, and Seller is the sole owner of the entire lessor’s interest in each Lease in effect with respect to Seller’s Property. This subsection 11(f) shall terminate at the Closing. Without limiting the generality of the foregoing:, and Sellers shall have no liability under this subsection 11(f) after Closing;
(g) With respect to each Lease applicable to each Seller’s Property, except as set forth in Schedule 11(g) attached hereto: (i) Each facility operated on the Property (a “Facility”Lease forwarded to Buyer under Section 6(b) is duly licensed as a true, correct and complete copy of the Lease; (ii) to Seller’s actual knowledge, the Lease is in full force and effect and there is no material default thereunder; (iii) no brokerage or leasing commissions or other similar 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 Lease or any extension or renewal thereof; (iv) all tenant improvement work required to be performed by the landlord under applicable laws. The licensed bed capacity the Lease up to the date of each Facility holding an Operating License is Closing has been completed or will be completed, at Seller’s expense, prior to the Closing, except as set forth on Schedule 1. No application 11(g) attached hereto (with Buyer to receive a credit for such unperformed tenant improvement work or for Buyer to assume the obligation to perform such unperformed tenant improvement work, in each case, as set forth on Schedule 11(g) attached hereto); (v) Tenant has been filed to reduce the number of licensed or certified beds of such Facility, to move or transfer the right to not prepaid any and all rents as of the licensed date hereof by more than thirty (30) days nor has Tenant delivered a security deposit, letter of credit or certified beds other security in connection with the Lease, except as set forth on Schedule 11(g) attached hereto; (vi) Tenant has not made any request to Seller for any assignment, transfer, or subletting in connection with all or a portion of such Facility the premises demised to any other locationTenant which is presently pending or under consideration by Seller; (vii) Seller represents and warrants to Buyer that Seller has heretofore billed Tenant for all fixed rent and additional rent due under the Lease as of the date hereof; (viii) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to amend construct at its own expense, any tenant improvement, except as may be set forth in Schedule 11(g) hereto (with Buyer to receive a credit for such unpaid tenant allowance or otherwise change such Facilityunperformed construction work or for Buyer to assume the obligation to pay such unpaid tenant allowance or perform such unperformed construction work, in each case, as set forth on Schedule 11(g) attached hereto); and (ix) the current monthly base rent for the Lease, the annual percentage increase in the base rent and the date of the next increase in base rent are as set forth on Schedule 11(g)-1 attached hereto;
(h) There are no occupancy rights, leases or tenancies affecting Seller’s authorized bed capacity and/or Property other than the number applicable Leases. Seller has not granted any first right of approved bedsrefusal or other purchase right in favor of any other person or entity, except as may be set forth on Schedule 11(h) hereto; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of Seller’s Property, or any interest therein which has not been terminated;
(i) 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;
(j) To Seller’s actual knowledge, Schedule 11(j) attached hereto is a true, correct and complete listing of all material warranties in effect for Seller’s Property (the “Warranties”);
(k) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code;
(l) With respect to each Guaranty applicable to the Leases on Seller’s Property: (i) the Guaranty forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Guaranty; and (ii) to Seller’s actual knowledge, the Guaranty is in full force and effect and there is no material default thereunder;
(m) The Ground Leases forwarded to Buyer under Section 6(b) are true, correct and complete copies of the Ground Leases. To Seller’s actual knowledge, the Ground Leases are in full force and effect and there are no proceedings material defaults thereunder;
(n) There are no employees currently employed by Seller at Seller’s Property who will remain employed following the Closing Date. Seller will not enter into any negotiations or actions pending orexecute any contract with a labor union between the date hereof and the Closing; and
(o) The PILOT Agreements forwarded to Buyer under Section 6(b) are true, to Sellers’ correct and complete copies of the PILOT Agreements. To Seller’s actual knowledge, contemplated to reduce the number of licensed or certified beds of such Facility.
(ii) The operation of each Facility PILOT Agreements are in full force and effect and there are no 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 Facilitydefaults thereunder; (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 has complied with, and to the knowledge of Seller, each Operator has complied with all applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information and Technology for Economic and Clinical Health Act of 2009, and all applicable state privacy Laws, and all applicable regulations promulgated under any such legislation.
(e) As used herein, the term "Seller’s actual knowledge" means the actual knowledge of Sxxxx Xxxxx, Jxxx Xxxxxx, Sxxxx Xxxxxx and Dxxxx Wild and shall not include any imputed or constructive knowledge; and such persons shall not have any personal liability or be obligated to perform any due diligence investigations in connection with making any representations or warranties herein. The representations and warranties of Sellers shall survive Closing for a period of one hundred eighty (180) days after Closing (the “Material Contract” means Survival Period”). If Buyer is aware at Closing or receives any information prior to Closing which indicates that any of Sellers’ representations or warranties in this Agreement are not true as of the Closing and Buyer elects nonetheless to proceed with the Closing, Buyer shall be deemed to have waived any claim for breach of such representation or warranty. In addition, Sellers shall be relieved of any liability for the representations and warranties contained herein with respect to any Ground Lease or any Lease to the extent Buyer has received an estoppel certificate covering the representations and warranties set forth herein from the other party to the Ground Lease or such Lease, as the case may be. LaSalle Medical Office Fund II, a Maryland real estate investment trust, joins herein for the purpose of (but solely for the purpose of) guaranteeing each of the following: (a) any contract that is not entered into in the ordinary course of business, consistent with past practice, (b) any contract, whether or not entered into in the ordinary course of business, that would require Buyer Seller’s obligations to expend more than $25,000 annually survive Closing under such contract (c) any contract that would not be fully performed within six (6) months after such contract is entered into, unless such contract is cancellable without penalty on thirty (30) days or less notice, (d) any administrative services agreement, pharmacy services agreement, or cost-sharing agreement and (e) any lease agreement pursuant to which a vendor occupies space within any Facilitythis Section 11.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)
Representations by Sellers. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Sellers make makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date, which shall survive the Closing for a period of one (1) year.:
(a) Sellers are duly organizedorganized (or formed), validly existing and in good standing under the laws of the State its state of Indianaorganization. Sellers are authorized to consummate have the transaction set forth herein power and fulfill all of their respective obligations hereunder and under all closing documents to be executed by Sellers, and have all necessary power authority to execute and deliver this Agreement and all closing documents Closing Documents to be executed by Sellers, and to perform all of Sellers’ obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents Closing Documents to be executed by Sellers, nor the performance of the obligations of Sellers hereunder or thereunder will result in the violation of any applicable municipal, county, state and federal laws, ordinances, regulations, statutes, administrative rulings or restrictive covenants (“Laws”) law or any provision of the organizational documents of Sellers or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Sellers are is bound;
(b) Sellers, alone, have, and at Closing hereunder will convey and transfer to Buyer, indefeasible, good and marketable legal and equitable fee simple title to the Properties 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 as to the Real Property.
(c) Sellers have not received any written notice of any threatened, current or pending litigation, actioncondemnation proceeding or tax appeals affecting Sellers or the Property and Sellers do not have any knowledge of any pending litigation or tax appeals against Sellers or the Property; Sellers have not initiated, proceeding nor are Sellers participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(including municipalc) Sellers have not entered into any contracts, healthsubcontracts 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, administrativeSellers have 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 Sellers do not have knowledge of any such violations;
(e) Sellers have fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Sellers are the tenant-in-common owners of the entire lessor’s interest in the Lease.
(f) With respect to the Lease: (i) the Lease forwarded to Buyer under Section 6(b) is a true, correct and complete copy of the Lease; (ii) the 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 Lease or any extension or renewal thereof; (iv) Sellers have no outstanding obligation to provide Tenant with an allowance to construct, or condemnation proceedings), tax appeals (or other similar proceedings challenging or seeking to reduce the assessed valuation of the Real Property) or environmental investigations against Sellersconstruct 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 $2,155,382.00 per annum with a rental increase of ten and four tenths of a percent (10.4%) in February of 2013;
(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, Sellers have 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 Property assets of Sellers, or in connection (ii) if such transaction does constitute a sale of all or substantially all the assets of any Sellers, Sellers shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with the business operated at the Real Property. Notwithstanding any provision in this Agreement laws or payment of taxes to the contrary, extent required by the disclosure of current or pending litigation shall in no way release Sellers or the current operators law of the Premises relevant state, or an indemnification from responsibility a party reasonably acceptable to Buyer for any such claims, and Buyer shall in no way be deemed resulting liability with respect to have assumed responsibility for any such claims, either by virtue of receipt of such notice or the occurrence of period prior to 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 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 a Residential Care Facility (as to LaPorte, Hobart, Tanglewood and Eastlake) and Home for the Aged (as to Niles) have been paid for in full, and are, and as of Closing will be, in full force and effect; provided, however, that, subject to the other terms of this Agreement, Buyer or its management agent shall be responsible for obtaining Operating Licenses and other Regulatory Approvals necessary for the operation of the Facilities by Buyer or Buyer’s management agent after the Closing. 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 holding an Operating License is as set forth on Schedule 1. 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 To Sellers’ knowledge, contemplated except as set forth in the environmental reports previously delivered by Sellers to reduce Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the number Property in violation of licensed any law, rule or certified beds of such Facility.
(ii) The operation of each Facility are in material compliance with all regulation applicable laws, Health Care Licenses and requirements of Health Care Regulatory Agencies and other governmental authorities having jurisdiction over to 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 Property which regulates or local laws, rules, regulations or published interpretations or policies controls matters 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 environment or public health or equivalent and all other safety (collectively, “Environmental Laws”). Sellers have not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or focal other governmental authoritiesdepartment, including without limitation those relating 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 such Facilitybe hazardous or toxic pursuant to any Environmental Laws. To Sellers’s physical structure knowledge, there are no underground storage tanks located on the Property; and
(j) Exhibit I attached hereto is a true, correct and environment, licensing, quality and adequacy complete listing 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 all warranties in effect for the type Property (the “Warranties”). The representations and warranties of care or services provided with respect to such FacilitySellers shall survive Closing for a period of one (1) year.
(iii) Seller has complied with, and to the knowledge of Seller, each Operator has complied with all applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information and Technology for Economic and Clinical Health Act of 2009, and all applicable state privacy Laws, and all applicable regulations promulgated under any such legislation.
(e) As used herein, the term “Material Contract” means each of the following: (a) any contract that is not entered into in the ordinary course of business, consistent with past practice, (b) any contract, whether or not entered into in the ordinary course of business, that would require Buyer to expend more than $25,000 annually under such contract (c) any contract that would not be fully performed within six (6) months after such contract is entered into, unless such contract is cancellable without penalty on thirty (30) days or less notice, (d) any administrative services agreement, pharmacy services agreement, or cost-sharing agreement and (e) any lease agreement pursuant to which a vendor occupies space within any Facility.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)
