Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent to Buyer as follows: A. Seller has and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing. B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property. C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property. D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date. E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property. F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing. G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property. H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances. I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate. J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase Agreement
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Purchaser that: o Seller has all requisite corporate power and will convey good, marketableauthority and is duly authorized to execute and deliver and to perform and observe the terms and provisions of this Agreement, and insurable all documents to be executed by Seller pursuant to this Agreement, to transfer title to the Property free to Purchaser, and clear of all liensto consummate the transactions contemplated herein, encumbranceswithout the consent or joinder by any person or entity not already obtained, claims other than those approvals and charges; subject only to general real estate taxes consents set forth in Paragraph 7(e) hereof, and installments for special assessmentsthose consents, if any, not yet levied required in order to transfer the rights of Seller in and certified for collection to the Warranties and Permits (which consents Seller makes no representation, warranty or covenant whatsoever). o No person, corporation, firm or entity other than Purchaser has any right, or option, to acquire the Property from Seller or is entitled to possession under or through Seller of all or any part thereof, and Seller has no knowledge and has received no notice that any party has any such right or option from, under or through any party other than Seller, except for all building those rights as are set forth in the Lease and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leasesin the Service Contracts, and except for such as otherwise expressly provided in Paragraph 26. hereof. Except as otherwise expressly provided in Paragraph 26. hereof, Seller shall not provide any information to other matters as are approved or waived by Buyer in writing.
B. There is no litigation pendinginterested purchasers of the Property, or negotiate with other parties, or solicit or accept offers to sell the best Property so long as this Agreement remains in effect. o Seller will cooperate reasonably and in good faith with Purchaser in connection with the Purchaser conducting its due diligence review of the Property. o Seller shall provide to Purchaser such information, and shall execute, acknowledge and deliver such agreements, documents and instruments, including opinions of Seller’s knowledge's legal counsel, investigation, condemnation as may be reasonably necessary or proceeding required in connection with any HSR Act filings in connection with the sale or purchase of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of pursuant to this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Subject to the receipt of the Sale Order, Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer Purchaser as follows:
A. (i) Seller has is a corporation duly organized, validly existing and will convey goodin good standing under the laws of its jurisdiction and incorporation, marketablewith (subject to entry of the Sale Order) all requisite power and authority to enter into this Agreement.
(ii) Except for the Sale Order, no consent, authorization or approval is required by Seller to assign and insurable transfer to Purchaser all of Seller's right, title and interest in and to the Property Purchased Contracts free and clear of all liens, encumbrances, claims Liens and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingClaims.
B. (iii) Seller has, at no expense to Purchaser, filed a motion seeking approval of this Agreement and will use its reasonable best efforts to obtain entry of the Sale Order in the form of Exhibit B hereto.
(iv) There is no litigation pendingpending or, or to the best of Seller’s 's knowledge, investigation, condemnation or proceeding of any kind threatened litigation against the Seller which may have a material adverse effect upon the Propertywould materially affect Seller's ability to perform each and every one of its obligations under this Agreement.
C. To (v) Seller has committed no acts or omissions which would result in any claim or offset by any obligor under a Contract that would impair the best value of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the PropertyPurchased Contract.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and wallsvi) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the All representations and warranties made herein set forth above are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made correct as of the date of this Agreement hereof and again as of will be true and correct on the date of closing Closing Date, and shall survive the closingclosing of this transaction for a period of 180 days following the Closing Date.
G. To (vii) No class action lawsuits or similar actions are pending, threatened or have been filed affecting the best Purchased Contracts as of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the PropertyClosing Date except as set forth in Section 2.6 hereof.
H. To (viii) Through the best of Servicing Transfer Date, Seller’s knowledge's Collection practices shall be in accordance with the standards set forth in the Fair Debt Collection Practices Act, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, Fair Credit Billing Act and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesFair Credit Reporting Act.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant represents and represent warrants to Buyer as follows:
A. Purchaser that at closing Seller has and will shall convey good, marketable, and insurable title the Subject Property to the Property Purchaser free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessmentssecurity interests, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and easements except for the Permitted Exceptions. At closing , title to the Subject Property shall be good and marketable and shall be such other matters as are approved will be insured at regular rates, without exception, by a title insurance company of Purchaser's choice licensed to do business in Pennsylvania. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, Seller shall not sell, assign, or waived by Buyer convey any right, title, or interest whatsoever in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Subject Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures create or debris of permit to exist any nature on lien, security interest, easement, encumbrance, charge, or condition affecting the Property.
D. The improvements and personal property located on or used for the Subject Property (including, but not limited to, other than the utilities, mechanical systems, roof, foundation and wallsPermitted Exceptions) are in good working order and in reasonable condition for without promptly discharging the age same prior to closing. All of the improvements foregoing representations and warranties of Seller are made by Seller both as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement hereof and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and again as of agreed that the date of closing representations and warranties set forth hereinabove shall survive the closing.
G. To closing of this Contract only for a period of one (1) year following the best of Sellers’ knowledgeclosing date, there are but not thereafter, and Seller shall have no violations liability of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect kind whatsoever for any breach thereof except to the Propertyextent a claim is asserted against Seller within such one (1) year period.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing complied in all material respects with its agreements and covenants contained herein to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating be performed on or prior to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of Closing Date, and all the representations and warranties made of Seller contained herein are no longer shall be true and accuratecorrect in all material respects on and as of the Closing Date (other than those representations and warranties which are qualified by “Material Adverse Effect”, then “material”, “materiality” or similar words, which shall be true and correct in all respects on and as of the Seller shall promptly disclose Closing Date) with the same to Buyer. Each effect as though made on and as of the Closing Date, except (i) to the extent that such representations and warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be were made as of a specified date, and as to such representations and warranties the date of this Agreement same shall continue on the Closing Date to have been true and again correct in all material respects as of the specified date (other than those representations and warranties which are qualified by “Material Adverse Effect”, “material”, “materiality” or similar words, which shall be true and correct in respect as of closing the specified date) and (ii) Seller may update any Schedule referred to in Article III hereto at any time prior to the Closing Date to reflect changes after the date hereof resulting from the conduct of the Company’s business in the ordinary course consistent with past practice, if such updated Schedule does not reflect any matter that could, individually or in the aggregate, adversely affect Buyer or the Company in any material respect (but no such matter included in any updated Schedule shall survive limit, modify or otherwise affect the closing.
G. To remedies available hereunder to Buyer, including any right to indemnification or the best of Sellers’ knowledgerepresentations or warranties of, there are or the conditions to the obligation of, the Parties under or with respect to this Agreement); provided, however, Buyer shall have no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders right to indemnification under Section 12.1(a) insofar as relating to Section 3.6 with respect to the Property.
H. To Owned Properties (or the best of certifications in Seller’s knowledge, Closing Certificate relating to Section 3.6 with respect to the Property is not contaminated with, nor threatened Owned Properties) with contamination from outside sources by respect to any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and matter reflected in the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided Abstracts delivered to Buyer within seventy-five (75) days after the date hereof pursuant to Section 15 8.15 and Seller shall not be in breach of any representation or warranty set forth in this Agreement is completeinsofar as relating to Section 3.6 (or the certifications in Seller’s Closing Certificate relating to Section 3.6 with respect to the Owned Properties) as a result of any matter set forth in said Abstracts. Buyer shall have received a certificate of Seller, true dated as of the Closing Date and accuratesigned by an officer of Seller, certifying as to the fulfillment of the conditions set forth in this Section 9.1 (“Seller’s Closing Certificate”).
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Stock Sale and Purchase Agreement (Southwestern Energy Co)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. (a) Seller is a federal savings bank duly organized, validly existing and in good standing under federal law and has all requisite power and will convey good, marketableauthority to own its assets and carry on its business as now conducted at the Office, and insurable title to all charters, licenses, permits, authorizations and other governmental approvals necessary therefor and insurance of its deposits by the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) Federal Deposit Insurance Corporation are in good working order full force and in reasonable condition for effect, except where the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing failure to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to so qualified would not have a material adverse effect on the Property.Seller;
F. In the event Seller subsequently becomes aware of a fact that any of the representations (b) The execution and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date delivery of this Agreement and again as the consummation of the date transactions contemplated hereby have been duly and validly authorized by the taking of closing all necessary corporate proceedings by Seller and, subject to obtaining the required regulatory approvals, this Agreement is a valid and shall survive binding obligation of Seller. Subject to obtaining the closing.required regulatory approval, Seller has full power, authority and legal right to enter into this Agreement and to consummate the transactions herein contemplated;
G. To (c) The execution and performance of this Agreement does not and will not violate the best provisions of Sellers’ knowledgethe Charter or Bylaws of Seller, there are no violations or the provisions of any citynote, countyindenture, statemortgage, federallease, land use, fire, health, safety, environmental, hazardous materials or other lawsagreement or instrument to which Seller or its parent company is a party or by which Seller or its parent company is bound or result in the creation of any lien, rulescharge or encumbrance upon any of the assets sold and purchased hereunder;
(d) Seller has good and marketable title to the Operating Facility, regulations, ordinances subject to no liens or orders encumbrances of any kind or nature;
(e) Seller has good and marketable title to the other assets sold and purchased hereunder and such assets are subject to no liens or encumbrances of any kind or nature except for securities pledged to secure public funds and Treasury Tax and Loan accounts;
(f) Seller carries and until the Closing Date will continue to carry insurance and bonds with reputable carriers in respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health Operating Facility and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All business substantially of the lease information provided character and amount carried by banks similarly situated;
(g) To Seller's Knowledge all loans to be listed on Schedule B and their related Loan Documentation, are valid and correct in all material respects, have all necessary signatures, are genuine as to the signatures of all makers, endorsers, guarantors and other signatories, were given for valid consideration, properly perfected and are enforceable in accordance with their respective terms;
(h) There are no unpaid charges, debts, liabilities, claims or obligations arising from the construction, ownership or operation of the Operating Facility which could give rise to any mechanic's or materialmen's or other statutory or equitable liens against any such real estate or any part thereof, for which Buyer would be responsible;
(i) No representation or warranty by Seller in this Agreement nor in any certificate or other instrument furnished or to be furnished to Buyer pursuant hereto contains or will contain any untrue statement of a material fact or omits or will omit to Section 15 state a material fact necessary in order to make the statements contained therein not misleading;
(j) The Operating Facility and the occupancy or operation thereof is not in violation of this Agreement is completeany law or any building, true zoning, or other ordinance, code or regulation in such manner as to interfere with the use and accurate.
J. There is no other debt or lien occupancy thereof in the ordinary course of business of Buyer, except where such violation would not have a material adverse effect on the property at use or occupancy by the time Seller of closing nor shall Seller place any other debt or lien on the property other that Operating Facility in the aforementioned Contract for Deed during this Contract for Deed.ordinary course of business of Seller;
Appears in 1 contract
Samples: Asset Purchase Agreement (First Federal Bankshares Inc)
Representations, Warranties and Covenants of Seller. As of the date of this Agreement, Seller does hereby covenant, warrant represents and represent warrants to Buyer as follows:
A. (a) Except as may be disclosed in the Due Diligence Materials or any Other Documents, Seller has and will convey good, marketable, and insurable title to not received any written notice that the Property free is in violation of any applicable local, state or federal laws and clear of all liensregulations that remains uncured (collectively, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing“Laws”).
B. There is no litigation pending(b) Except as otherwise set forth in the Preliminary Report, Due Diligence Materials or Other Documents, (i) to the best of Seller’s knowledge, investigationthere are no condemnation, condemnation environmental, zoning or proceeding other land-use regulation proceedings, either instituted or planned to be instituted, that would materially and adversely affect the use, operation or value of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of , (ii) to Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on special assessment proceedings affecting the Property.
D. The improvements , and personal property located on (iii) to Seller’s knowledge, there is no litigation pending or used for threatened against Seller arising out of the ownership or operation of the Property (includingor that might materially and adversely affect the development, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age value or use of the improvements as Property or the ability of the effective date of Seller to perform its obligations under this Agreement. Seller shall have the ongoing obligation up through the closing to inform notify Buyer promptly of any defect such proceedings or litigation of which Seller obtains knowledge.
(c) At the time of Closing, there will be no outstanding payments or amounts due and owing under any written or oral contracts made by Seller for any Improvements to the Property (including without limitation to the General Contractor under the General Contract). To Seller’s knowledge, other than the General Contract, the contracts listed in Exhibit F, or any other contracts delivered or made available to Buyer as part of the Due Diligence Documents or Other Documents, Seller is not a party to any other contracts for construction work at the Property.
(d) To Seller’s knowledge, except as set forth in the improvements that occur between Due Diligence Materials or Other Documents, there has been no activity on the effective Property involving the handling, manufacture, treatment, storage, use, release, or disposal of any Hazardous Materials in violation of any Laws. Except as otherwise set forth in the Preliminary Report, Due Diligence Materials or Other Documents, to Seller’s knowledge, removal or other remedial action with respect to Hazardous Materials in, on, under or about the Property is not being required by any governmental authority having jurisdiction over the Property.
(e) To Seller’s knowledge, and except as otherwise set forth in the Preliminary Report, Due Diligence Materials or Other Documents, there are no public improvement assessments or bonds assessed or proposed to be assessed, against the Property.
(f) Seller is a limited liability company, duly organized and validly existing under the laws of the State of Delaware and in good standing under the laws of the State of California. This Agreement and all
(g) Seller is the legal and equitable owner of the Property, subject to the Permitted Encumbrances, with full right to convey the same. Without limiting the generality of the foregoing, Seller has not granted any option or right of first refusal or first opportunity to any party to acquire any interest in any of the Property which remains in force or effect as of the date of this Agreement and the closing dateAgreement.
E. (h) Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (i.e., Seller is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in the Code and regulations promulgated thereunder).
(i) Seller (a) is not in receivership or dissolution; (b) has not made any assignment for the benefit of creditors; (c) has not admitted in writing its inability to pay its debts as they mature; (d) has not been adjudicated a bankrupt entity; and (e) has not filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization, or an arrangement with creditors under the Federal Bankruptcy Law or any other similar law or statute of the United States or any state, and does not have any such petition filed against Seller.
(j) To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations is currently in compliance with, and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose at all times during the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections term of this Agreement shall be deemed to be made as remain in compliance with, the regulations of the date Office of this Agreement and again as Foreign Assets Control (“OFAC”) of the date U.S. Department of closing Treasury and shall survive the closing.
G. any statute, executive order (including Executive Order 13224, dated September 24, 2001 and entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), or regulation relating thereto. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property Seller is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safetylisted on, and Seller shall not during the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 term of this Agreement is completebe listed on, true the Specially Designated Nationals and accurate.
J. There is no other debt or lien Blocked Persons List maintained by OFAC and/or on the property at the time of closing nor shall Seller place any other debt similar list maintained by OFAC or lien on the property other that the aforementioned Contract for Deed during this Contract for Deedgovernmental authority pursuant to any authorizing statute, executive order, or regulation.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as Fradxxxx xxx Fradxxxx xx follows:
A. (a) Seller has full corporate power and will convey goodauthority to execute, marketabledeliver and perform this Agreement.
(b) This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against it in accordance with its terms.
(c) Seller is the beneficial and record owner of the Purchased Shares, and insurable pursuant to this Agreement, Seller shall transfer to Fradxxxx good and marketable title to the Property Purchased Shares free and clear of all liensliens and encumbrances except restrictions on transfer imposed by Securities Laws. The delivery to Fradxxxx xx the stock certificate representing the Purchased Shares and the payment of the Purchase Price will transfer to Fradxxxx xxxord ownership of and good and valid title to the Purchased Shares, encumbrances, claims free and charges; subject only to general real estate taxes clear of all liens and installments for special assessments, if any, not yet levied encumbrances except restrictions on transfer imposed by Securities Laws.
(d) Seller is the beneficial and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions record owner of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of recordthe Option Shares, and existing tenant leasesupon timely exercise of the Option and timely payment of the Exercise Price, Seller shall deliver to Fradxxxx xxxd and marketable title to the Option Shares free and clear of all liens and encumbrances except for such other matters as are approved or waived restrictions on transfer imposed by Buyer in writingSecurities Laws. Upon timely exercise of the Option and timely payment of the Exercise Price, the delivery to Fradxxxx xx the stock certificate representing the Option Shares will transfer to Fradxxxx xxxord ownership of and good and valid title to the Option Shares, free and clear of all liens and encumbrances except restrictions on transfer imposed by Securities Laws.
B. There is no litigation pending(e) Until expiration or termination of the Exercise Period, or to the best Seller shall vote all shares of USIS owned by it in favor of a four member board of directors of USIS comprised of two designees of Fradxxxx, xxd two designees of Seller’s knowledge; provided, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.however,
Appears in 1 contract
Samples: Stock Purchase Agreement (U S Industrial Services Inc)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant shall have complied in all material respects with each of its agreements and represent covenants contained herein to Buyer be complied with on or prior to the Closing Date. All the representations and warranties of Seller set forth in this Agreement that are qualified as follows:
A. Seller has to materiality shall be true and will convey good, marketablecorrect, and insurable title to the Property free representations and clear warranties of Seller set forth in this Agreement that are not so qualified shall be true and correct in all liensmaterial respects, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements each case as of the effective date of this Agreement. Seller shall have , and as of the ongoing obligation up through Closing Date as though made on and as of the closing Closing Date, with future tense references in Section 3.1 of the Asset Purchase Agreement to inform Buyer of any defect in the improvements that occur between the effective date extent modified by Section 5 of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed being deemed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any present tense references as of the Closing Date, except that the accuracy of representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made that by their terms speak as of the date of this Agreement or some other date shall be determined as of such date; provided that this condition shall not be unsatisfied unless it would be unsatisfied if the representations and again warranties of Seller in this Agreement were deemed to refer to the Business as defined in this Agreement and the "Business" as defined in the Asset Purchase Agreement, taken as a whole, and the Disclosure Schedule to the Asset Purchase Agreement is read to apply to such combination of both such Businesses. Buyer shall have received a certificate executed by or on behalf of Seller, dated as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledgeClosing Date, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect certifying as to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All fulfillment of the lease information provided to Buyer pursuant to Section 15 of conditions set forth in this Agreement is complete, true and accurateSection.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hollinger International Inc)
Representations, Warranties and Covenants of Seller. Subject in all respects to the matters set forth in Section 8 above, Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has that the following matters are true and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date execution of this Agreement and will also be true and correct as of the closing dateClose of Escrow:
(a) Seller is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware.
E. To Seller’s knowledge, (b) This Agreement and all the documents and items to be executed and delivered by Seller has disclosed to Buyer all information relating pursuant to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections terms of this Agreement shall Agreement, (i) have been or will be deemed to duly authorized, executed and delivered by Seller, (ii) are or will be made legal, valid and binding obligations of Seller as of the date of their respective executions, (iii) are or will be enforceable in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of contracting parties generally); and (iv) do not and will not, at the Close of Escrow, violate any provisions of any agreement to which Seller is a party except for any restriction on transfer pursuant to that certain Indenture dated as of November 13, 2006, between Seller and The Bank Of New York Trust Company, N.A. (the interests of which as indenture trustee have succeeded to The Bank of New York Mellon Trust Company, N. A.) relating to Seller’s Floating Rate Senior Secured Notes due 2010 (the “Notes”) Seller has issued a redemption notice announcing that it will redeem all of the outstanding Notes which is expected to close prior to the Close of Escrow. The Property shall be conveyed to Buyer at the Close of Escrow free and clear of any lien on the Property held for the benefit of the holders of the Notes. Seller shall deliver to Buyer, within thirty (30) days after Opening of Escrow, a set of resolutions of the board of directors of Seller confirming the due authorization, execution and delivery of this Agreement by Seller and again the person(s) authorized to execute any agreement or other instrument to be delivered in connection with this Agreement, which resolutions shall be certified by the corporate secretary of Seller.
(c) To Seller’s actual knowledge, the Property Documents are true and correct in all material respects as of the date of closing such document; provided, however, that Seller makes no representation or warranty and shall survive have no liability or responsibility for (i) any inaccuracy in the closingsquare footages recited for the Improvements herein or in any Property Document, and (ii) anything set forth in any third party reports which are included in the Property Documents.
G. (d) To Seller’s actual knowledge, and except as otherwise disclosed to Buyer in writing, no condemnation, eminent domain or other legal action is pending or threatened in writing against the best Property, nor has Seller any actual knowledge of Sellers’ any assessments affecting the Property other than as set forth in the Commitment.
(e) To Seller’s actual knowledge, and except as otherwise disclosed to Buyer in writing, there are no violations of any citycovenants, countyconditions or restrictions applicable to the Property, stateand Seller has received no written notice or complaint with respect to any such violation or alleged violation.
(f) To Seller’s actual knowledge: (i) there are no leases or tenancy agreements affecting the Property, federalor any portion thereof, land useother than the Leases delivered to Buyer and reflected in the Rent Schedule; (ii) the information set forth in said Rent Schedule is true and correct in all material respects as of the date thereof; (iii) there are no amendments, firemodifications or supplements to the Leases, healthwhether oral or written, safety, environmental, hazardous materials except those disclosed to Buyer in the Property Documents; (iv) Seller has not received any rentals or security or other laws, rules, regulations, ordinances deposits thereunder other than as set forth in the Leases; and (v) there are no material defaults under the Leases.
(g) There is not currently in effect any unrecorded agreement entered into by Seller or orders by which Seller is bound by which a third party has been granted any parking rights at or with respect to the PropertyProperty except for the Leases and except as otherwise disclosed to Buyer in the Property Documents.
H. (h) Seller has not received any written correspondence challenging the validity of any easement appurtenant to the Property as shown on the ALTA survey made available to Buyer as part of the Property Documents.
(i) To the best of Seller’s actual knowledge, the Property Seller is not contaminated with, nor threatened with contamination from outside sources included on the List of Specially Designated Nationals and Blocked Persons maintained by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authoritiesOFAC, or which resides in, or is known to pose organized or chartered under the laws of, (A) a risk to health and safety, and jurisdiction that has been designated by the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All U.S. Secretary of the lease information provided Treasury under Section 311 or 312 of the Patriot Act as warranting special measures due to Buyer pursuant money laundering concerns or (B) any foreign country that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to Section 15 of this Agreement is complete, true and accuratethe group or organization continues to concur.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Purchaser acknowledges that it is purchasing the Property and accepting it in its "as is, where is" condition based upon its own inspection as to the Property, without representation or warranty on the part of Seller, except as specifically set forth in this Section 7.1. Notwithstanding the foregoing, as to the Property, as applicable, Seller represents and warrants to, and covenants with, Purchaser the following as of the Effective Date, which representations, warranties, and covenants shall remain true as of the Closing Date, subject to changes arising in the ordinary course of business or permitted under this Agreement, provided that Purchaser shall be notified of the same, and shall survive the consummation of the Purchase for a period of 12 months after the Closing, and upon each of which Purchaser does hereby covenant, warrant and represent shall continue to Buyer as followsrely:
A. (a) Except as shown on the Title Commitment, Seller is the fee title owner of the Property.
(b) Except as shown on the Title Commitment, to the knowledge of Seller, there are no unrecorded or undisclosed legal or equitable interests in the Property owned or claimed by any party other than Seller;
(c) To the knowledge of Seller, there is no assessment presently outstanding or unpaid for local improvements or otherwise which has or may become a lien against the Property. Further, Seller knows of no proposed assessments or any public improvements affecting the Property which have been ordered to be made and/or which have not been completed, assessed, and paid for as of the Effective Date;
(d) Seller has and will convey good, marketablereceived no notice of, and insurable title has no knowledge of, any existing or threatened condemnation, eminent domain proceeding, or any action of a similar kind or any change, redefinition, or other modification of the zoning classification which would affect the Property;
(e) To the knowledge of Seller, there is no Lease, occupancy agreement or any right whatsoever in any party to occupy the Property, or any part, other than those itemized in the rent roll attached as Exhibit B which rent roll Seller represents, to Seller's knowledge, to be true, correct and complete in all material respects;]
(f) To the knowledge of Seller (i) there are no existing violations of any law, building code, zoning ordinance, license, or building rule or regulation affecting the Property in any material respect and (ii) the Property is in compliance with all zoning ordinances, parking requirements, side front and back yard requirements, and height restrictions, or has obtained waivers or variances with respect to such ordinances, requirements, or restrictions;
(g) Except as set forth on the attached Exhibit C, to the knowledge of Seller [and its manager of the Property], there are no contracts for any services or employment or other commitments or obligations, [including the management agreement for the apartment complex, which will bind Purchaser as owner of the Property,] and any such contracts to which Seller is a party are terminable upon not more than 30 days notice, without fee or penalty. The Seller shall pay all amounts due under any such contracts and cause such contracts to be discharged or terminated prior to the Closing, unless Purchaser notifies Seller that Purchaser will assume such contracts. With respect to any such contracts under which Purchaser will assume any amounts paid or payable shall be pro-rated between the Parties at the Closing and appropriate credits shall be given. [The property management agreement between Seller and its manager shall be terminated at Closing];
(h) To the knowledge of Seller, (a) Seller presently has all current certificates of occupancy and licenses required by any governmental authorities asserting jurisdiction over the Property owned by it in order for the Property to be leased and occupied and (b) such certificates of occupancy and licenses are, and shall as of the Closing be, in good standing and free from violations; [provided, however, that nothing contained in this paragraph shall be deemed to constitute a representation that any tenant of the Property has all the certificates, permits, or licenses required by any governmental authorities to carry out the tenant's operations and activities in the manner carried out by it;]
(i) Seller is the owner of all Personal Property, subject to no liens, security interests, or encumbrances whatsoever, except the mortgage liens or security interests expressly permitted by this Agreement and liens for taxes not yet due and payable;
(j) Seller has no knowledge of any material defect, whether latent or patent, existing as of the Effective Date with respect to the Improvements, normal wear and tear and normal repair and replacement excepted;
(k) To the knowledge of Seller: (i) while Seller owned or operated the Property, the Property was not used for the purpose of the disposal of, refining, generating, manufacturing, producing, storing, handling, treating, transferring, releasing, processing, or transporting any hazardous or toxic waste or substance, as such terms are defined in the Resource Conservation and Recovery Act of 1976, 42 USC 6901, et seq., as amended, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC 9601, et seq., as amended, the Superfund Amendments and Reauthorization Act, Public Law 99-499, or the Michigan Natural Resources and Environmental Protection Act (MCL 324.20101 et seq.), including, but not limited to, mono- and poly-chlorinated biphenyls, asbestos-containing materials and petroleum and petroleum products and Seller's constituents; and (ii) no such materials are located on the Property;
(l) Seller is not currently a party to any proceedings under any applicable bankruptcy, reorganization, insolvency, or similar laws;
(m) At or prior to the Closing, Seller shall use reasonable efforts to promptly notify Purchaser of any material change in any condition which comes to Seller's attention with respect to the Property or of any event or circumstance which makes any representation or warranty to Purchaser under this Agreement untrue or misleading, or any covenant of Seller under this Agreement incapable or less likely of being performed;
(n) From and after the Effective Date and through and including the Closing Date, Seller agrees to operate the Property consistent with its prior operation;
(o) Seller is a duly organized and validly existing Michigan [ENTITY];
(p) To the knowledge of Seller, the financial statements for the last [number] ([number]) years delivered to Purchaser, copies of which are attached as Exhibit D (as the same may be updated from time to time), are true and correct in all material respects;
(q) [As a condition to the Closing, Seller shall deliver to Purchaser, on or before the Closing Date, currently executed tenant estoppel certificates in a form acceptable to Purchaser covering the rentable square feet which has been rented in the Property each with full and complete copy of the lease attached;]
(r) The Property is free and clear of all liens, encumbrancespledges, claims encumbrances and charges; subject only security agreements except those which are to general real estate taxes be assumed under this Agreement and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanksoutstanding debts or liabilities which are known, xxxxxhave been claimed, or other underground structures of which Seller has received any type of notice outstanding against Seller or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) except those which are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect currently being incurred in the improvements that occur between the effective date ordinary course of this Agreement business and the which will be paid at closing date.or otherwise accounted for as provided in Section 6.4;
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations (s) Notwithstanding anything contained in this Section 7.1 to the contrary, if Purchaser discovers any material breach of or material errors or omissions in other Sections of Seller's representations or warranties at any time prior to the Closing, Purchaser's sole remedy shall be to cancel and terminate this Agreement by notice to Seller upon the later of the end of the Inspection Period or 5 business days after discovering such breach of representation or warranty and upon notifying Title Company (and/or Seller) of the termination by Purchaser, the Xxxxxxx Money shall be deemed returned to be made as Purchaser, or to complete the purchase of the date of this Agreement and again Property as provided without reduction of the date of closing purchase price and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials without damages or other lawsremedy against Seller. If Purchaser discovers a material breach of, rulesor material errors or omissions in, regulations, ordinances any representation or orders with respect warranty subsequent to the Property.
H. To the best its acquisition of Seller’s knowledge, the Property is not contaminated withwithin the 12 month period following Closing, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used Purchaser shall have such remedies as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesare allowed under Michigan law.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations, Warranties and Covenants of Seller. All representations and warranties of Sellers contained this Agreement (disregarding any references therein to materiality), other than the representations and warranties of Sellers set forth in Sections 6.1.1, 6.1.2, 6.1.13, 6.1.14 hereof (the “Seller does hereby covenantFundamental Representations”), warrant shall be true and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall Closing Date (other than any variations that arise from any changes in circumstances, events or actions occurring or taken from and after the Effective Date that have the ongoing obligation up through the closing to inform Buyer of any defect occurred in the improvements operation of the Assets in the ordinary course of business, consistent with past practice and are not expressly prohibited by the terms hereof), with the same force and effect as if such representations and warranties were made anew as of the Closing Date (with such variations that occur between arise from any changes in circumstances, events or actions occurring or taken from and after the effective date Effective Date that have occurred in the operation of this Agreement the Assets in the ordinary course of business, consistent with past practice and are not expressly prohibited by the closing date.
E. To Seller’s knowledgeterms hereof), Seller has disclosed in each case except for breaches as to Buyer all information relating to matters that, individually or in the Property that could aggregate, would not reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any financial condition or value of the Assets taken as a whole, and Sellers shall have performed and complied, in all material respects, with all covenants and agreements required by this Agreement to be performed or complied with by Sellers on or prior to the Closing Date. The Seller Fundamental Representations (disregarding any references therein to materiality) shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if such representations and warranties were made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each anew as of the warranties and representations contained Closing Date. Purchaser shall have received a certificate (the “Sellers Bring-Down Certificate”) signed by an authorized officer of Sellers to the effect of the provisions of this Section. For the avoidance of doubt, notwithstanding anything in this Section or in other Sections of this Agreement 9.2.1, Purchaser shall be deemed entitled to be made as deliver a Notice of Breach to Sellers for any breach of a representation or warranty of Sellers (other than any variations that are both (a) disclosed in the Sellers Bring-Down Certificate and (b) arise from any changes in circumstances, events or actions occurring or taken from and after the Effective Date that have occurred in the operation of the date Assets in the ordinary course of this Agreement business, consistent with past practice and again as are not expressly prohibited by the terms hereof), regardless of the date of closing and shall survive the closingwhether such breach is material, has a material adverse effect or was known or disclosed to Purchaser prior to Closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parkway Properties Inc)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer Purchaser that the following matters are true and correct as followsof the execution of this Agreement and will also be true and correct as of the Closing:
A. (a) Seller is a limited partnership duly organized and validly existing under the laws of the State of Ohio. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any agreement to which Seller is a party or to which the Property or Seller is subject or bound. No consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Seller has not received notice (from any applicable governmental entity or otherwise) of any violation of any applicable building codes, environmental, zoning, subdivision and will convey good, marketableland use laws, and insurable title to other local, state and federal laws and regulations affecting the Property free and clear use and/or operation of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingthe Property.
B. There (i) The plans and specifications, certificate(s) of occupancy, warranties, operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) the certificate(s) of occupancy and warranties are in full force and effect.
(d) The Rent Roll attached hereto as Exhibit B is no litigation pendingtrue, or correct and complete. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to the best of Seller’s knowledge, investigationare in full force and effect, condemnation without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or proceeding as disclosed to Purchaser in writing at the time of any kind threatened against delivery or identified on the Seller which may Rent Roll. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have a material adverse effect upon not been amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
C. (e) Exhibit F attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which will have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. To the best of Seller’s knowledge, the Contracts, and all other documents required to be delivered to Purchaser pursuant to this Agreement, are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) Except as disclosed to Purchaser in writing, there are no condemnation, environmental, zoning or other land-use regulation proceedings, either instituted or, to the best of Seller’s knowledge, threatened to be instituted, which would detrimentally affect the value of the Real Property or the use and operation of the Real Property for its intended purpose, and there are no assessments affecting the Real Property other than as set forth in the Commitment or as disclosed in Exhibit G attached hereto.
(g) Seller has received no notice advising that (i) any utility required for the present use and operation of the Property has not been installed across public property or valid easements to the boundary lines of the Real Property, or is not connected pursuant to valid permits, or (ii) such facilities are inadequate to service the Property or are not in good operating condition.
(h) To the best of Seller’s knowledge, Seller represents that has obtained all licenses, permits, easements, and rights-of-way, including proof of dedication, required from all governmental authorities having jurisdiction over the Real Property or from private parties for the present use and operation of the Real Property and to assure vehicular and pedestrian ingress to and egress from the Real Property at all access points currently being used.
(i) At the Closing, there are will be no underground tanks, xxxxx, outstanding contracts made by Seller for the construction or other underground structures or debris repair of any nature on improvements to the PropertyImprovements which have not been fully paid for and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
D. The improvements (j) Seller does not use, treat, store or dispose of, and personal property located Seller has not permitted anyone else to use, treat, store or dispose of, whether temporarily or permanently, any hazardous or toxic materials (“Hazardous Materials”) at, on or used for beneath the Real Property (includingin violation of any federal, but not limited tostate or local law, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age regulation or ordinance. Seller has no knowledge of the improvements as presence, use, treatment, storage, release or disposal of any Hazardous Materials at, on or beneath the Real Property which has created or might create any liability of owners or occupants of the effective date Real Property under any federal, state or local law or regulation or which would require reporting to a governmental agency. Except as disclosed in writing to Purchaser, to the best of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect no asbestos or PCBs are contained in or stored on the Real Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, there are no storage tanks located in, on or under the Real Property.
(k) Seller has not received any notice from any insurance carrier of any defects or inadequacies in the Property, or in any portion thereof, which would adversely affect the insurability thereof or the cost of such insurance. Except as set forth on Exhibit G, there are no pending insurance claims.
(l) Except as set forth in Exhibit G attached hereto, there are no pending or, to the best of Seller’s knowledge, threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein. Except as delivered to Purchaser, there are no litigation documents relating to any of the matters set forth in Exhibit G other than routine landlord-tenant proceedings (relating to evictions and/or recovery of rent) in the ordinary course of business.
(m) Seller is not contaminated witha “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safetyas amended (the “Code”), and Seller will furnish to Purchaser, prior to the Property has never been used Closing, an affidavit in the form attached hereto as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All Exhibit H. The representations and warranties made in this Agreement by Seller shall be continuing and shall be deemed made by Seller as of the lease information provided to Buyer pursuant to Section 15 of Closing with the same force and effect as if in fact made at that time. All representations and warranties made in this Agreement is complete, true and accurate.
J. There is no other debt shall not merge into any instrument or lien on the property conveyance delivered at the time Closing but shall survive the Closing for a period of closing nor one (1) year, at which xxxx Xxxxxx’x liability with respect to such representations and warranties shall Seller place terminate except as otherwise provided herein or in any other debt document or lien on instrument entered into or delivered in connection with the property other that transactions contemplated by this Agreement (including, without limitation, the aforementioned Contract for Deed during this Contract for Deeddeed) and except as to claims asserted in writing within such one (1) year period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN Apartment REIT, Inc.)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as followsPurchaser that:
A. (a) Seller has all requisite corporate power and will convey good, marketableauthority and is duly authorized to execute and deliver and to perform and observe the terms and provisions of this Agreement, and insurable all documents to be executed by Seller pursuant to this Agreement, to transfer title to the Property free to Purchaser, and clear of all liensto consummate the transactions contemplated herein, encumbranceswithout the consent or joinder by any person or entity not already obtained, claims other than those approvals and charges; subject only to general real estate taxes consents set forth in Paragraph 7(e) hereof, and installments for special assessmentsthose consents, if any, not yet levied required in order to transfer the rights of Seller in and certified for collection to the Warranties and Permits (which consents Seller makes no representation, warranty or covenant whatsoever).
(b) No person, corporation, firm or entity other than Purchaser has any right, or option, to acquire the Property from Seller or is entitled to possession under or through Seller of all or any part thereof, and Seller has no knowledge and has received no notice that any party has any such right or option from, under or through any party other than Seller, except for all building those rights as are set forth in the Lease and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of recordin the Service Contracts, and existing tenant leasesthose rights, and except for such if any, of a squatter on the Land. Seller shall not provide any information to other matters interested purchasers of the Property, or negotiate with other parties, or solicit or accept offers to sell the Property so long as are approved or waived by Buyer this Agreement remains in writingeffect.
B. There is no litigation pending, or to (c) Seller will cooperate reasonably and in good faith with Purchaser in connection with the best Purchaser conducting its due diligence review of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best (d) Seller shall provide to Purchaser such information, and shall execute, acknowledge and deliver such agreements, documents and instruments, including opinions of Seller’s knowledge's legal counsel, Seller represents that there are no underground tanks, xxxxx, as may be reasonably necessary or other underground structures required in connection with any HSR Act filings in connection with the sale or debris purchase of any nature on the PropertyProperty pursuant to this Agreement.
D. (e) The improvements and personal property located on or used for the Property (includingLease is, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement, in full force and effect in accordance with its terms, and, to Seller's knowledge, has no uncured breach or default (nor any claim for breach or default) by Seller or by the State of North Carolina, as tenant thereunder, and, to Seller's knowledge, no off-sets or defenses are available to any party under the Lease. Seller has no knowledge of any claim or dispute concerning or relating to the validity or binding effect of the Lease in accordance with its terms or conditions, and has received no written notice of any such claims or disputes. Seller shall not amend, modify or terminate the Lease prior to the Closing Date without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed by Purchaser. Copies of the Lease and any amendments thereto have the ongoing obligation up through the closing been delivered by Seller to inform Buyer of any defect in the improvements that occur between Purchaser on or before the effective date of this Agreement Agreement, and Purchaser acknowledges the receipt of such documents delivered by Seller.
(f) There are no service contracts, operating agreements or maintenance agreements entered into by Seller, which are in force and which affect the Property or the operation or maintenance thereof, except for those contracts described on Exhibit C, attached hereto and incorporated herein by reference (the "Service Contracts").
(g) Seller has no knowledge and has received no written notice that the construction of the Improvements on the Property violates any provision of any applicable building codes, fire regulations or other governmental ordinances, orders or regulations. To the knowledge of Seller, all material certificates of occupancy, licenses, permits, authorizations and approvals required by any governmental authority with respect to the construction of the Improvements as a correctional facility in accordance with the plans and specifications for the Improvements and the closing dateacceptance of such Improvements by the State of North Carolina as a tenant under the Lease have been obtained. Copies of all such certificates, licenses, permits, authorizations and approvals in the possession of Seller have been delivered by Seller to Purchaser on or before the effective date of this Agreement, and Purchaser acknowledges receipt of such documents delivered by Seller.
E. To Seller’s knowledge(h) Seller has received no written notice from any mortgagee, insurance company, insurance rating board, fire rating board, governmental agency or authority or from the State of North Carolina as a tenant under the Lease recommending or requiring any repairs to be done on the Improvements.
(i) Except for those matters, if any, disclosed in the Environmental Report to be obtained by Seller pursuant to Paragraph 23. hereof, Seller has disclosed no actual knowledge that any hazardous or toxic substances have been used, stored or disposed of on the Property during Seller's ownership of the Property or that other environmental conditions currently exist on the Property in violation of any applicable local, state or federal environmental laws, and Seller has not received any written notification from any local, state or federal regulatory agency that such a violation exists. Notwithstanding any representation or warranty of Seller to Buyer the contrary contained in this Agreement, Seller has continuing obligations with respect to mitigation associated with wetland and stream impacts on the Land resulting from the construction of the Improvements (the "Mitigation Action"), which obligations shall be performed by Seller as soon as reasonably possible and shall survive the Closing. Seller covenants and agrees to indemnify and hold Purchaser harmless from and against any and all information loss, liability, cost, claim, demand, damage, action, cause of action and suit arising out of or related to the Mitigation Action, which indemnity and hold harmless shall survive the Closing. Purchaser covenants and agrees to allow Seller, its agents, representatives and contractors, access to the Land at all reasonable times following the Closing for the purposes of performing, inspecting and/or monitoring the Mitigation Action.
(j) Seller is not a party to any litigation, and Seller knows of no litigation or threatened litigation of a material nature, affecting the Property, except as expressly provided herein. Seller has no actual knowledge of any pending or contemplated condemnation proceedings affecting the Property or any part thereof. At the time of Closing, no goods or services will have been contracted by Seller for the Property which remain unpaid and which might give rise to mechanics' or materialmen's liens affecting all or any part of the Property, or to which Purchaser will be bound.
(k) Seller has received no written notice that there are any special assessments against or relating to the Property, and Seller knows of no such proposed assessments. Seller has not commenced any tax reduction proceedings affecting the Property that could reasonably or any part thereof as of the effective date of this Agreement, and Seller will not initiate any such proceedings prior to the Closing. Notwithstanding anything to the contrary contained in this Agreement, the representations, warranties and covenants of Seller contained in this Paragraph 8., or elsewhere in this Agreement, are made expressly subject to and are qualified by the matters disclosed in (i) the letter, dated February 28, 2001, from Purchaser to Seller, together with the Facility Accessment, dated January 22, 2001; the letter, dated February 23, 2001, from the North Carolina Department of Correction to P.S. Xxxxxxx xxxh Millxx Xxxlding Corporation; and the Mountain View Correctional Facility Trouble List-14 Feb 2001 enclosed therewith, and (ii) the memorandum, dated Wednesday, January 24, 2001, 2:33:36 PM from Jerrx Xxxxx xx Jerrx Xxxxxxx, Xxm Xxxxx, xxd Davix Xxxxxx, xxgether with the North Carolina Department of Correction Procedure for Performing Physical Alterations, Modifications, Improvements, etc. to Corrections Corporation of America's Facilities at Bayboro and Spruce Pine, North Carolina enclosed therewith. Notwithstanding anything to the contrary contained in this Agreement, Seller makes no representation or warranty whatsoever concerning the accuracy or completeness of any due diligence materials or confidential information provided by Seller pursuant to this Agreement or the transactions contemplated herein (other than those due diligence materials or confidential information prepared by employees of Seller). Any representation, warranty or covenant contained in this Agreement which is made to Seller's "actual knowledge", or "knowledge", or "knowledge, information or belief", or other words of similar meaning, shall be expected limited to the actual knowledge of Seller. Seller shall have a material adverse effect on the Property.
F. no obligation to undertake any inquiry or investigation to determine whether any matter so represented, warranted or covenanted is true. In the event at any time prior to the Closing the Seller subsequently becomes aware of a fact obtains actual knowledge that any representation, warranty or covenant contained in this Paragraph 8. or elsewhere in this Agreement, made upon Seller's actual knowledge, or knowledge, or knowledge, information and belief, or other words of the representations and warranties made herein are similar meaning, is no longer true and accurateaccurate in any material respect, then the Seller shall promptly disclose notify Purchaser in writing and specify therein the same to Buyerfactors rendering such representation, warranty or covenant inaccurate. Each of the warranties and representations contained in this Section Any such representation, warranty or in other Sections of this Agreement covenant shall be deemed to be made as amended in accordance with such notification. Purchaser shall have the right following such notification and prior to the Closing to terminate this Agreement by written notice to the Seller. In the event this Agreement is terminated in accordance with this Paragraph 8., the parties shall be relieved from any further liability hereunder, except for any obligations of the date parties which expressly survive a termination of this Agreement Agreement, and again as the Earnxxx Money shall be paid to Purchaser. In the event Purchaser proceeds to close this transaction on the Closing Date, Purchaser shall be deemed to have accepted all representations, warranties and covenants of the date Seller, as so amended. Except for the representations, warranties and covenants of closing Seller contained in this Paragraph 8, or elsewhere in this Agreement or in the documents to be executed and shall survive delivered by Seller in connection with the closing.
G. To the best of Sellers’ knowledgeClosing, there are no violations of Seller has not made, and does not make, any cityother representations, county, state, federal, land use, fire, health, safety, environmental, hazardous materials warranties or other laws, rules, regulations, ordinances or orders covenants with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesis being sold in its existing condition.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller warrants, represents and covenants to Buyer that as of the Closing Date:
a) Seller shall have taken all action necessary to authorize the execution, delivery and performance of this Agreement and has and shall have, from and after the date of this Agreement, with respect to the Acquired Assets, full right, power and authority to sell, transfer and convey to Buyer the Acquired Assets. This Agreement and all other agreements referred to herein and executed by Seller are legal, valid and binding obligations of Seller, enforceable in accordance with their terms, except (i) that enforceability may be limited by general principles of equity, (ii) that courts may award money damages rather than specific enforcement of contractual provisions involving matters other than or in addition to the payment of money, and (iii) as may be limited by bankruptcy, reorganization, insolvency and similar laws of general application relating to or affecting the enforcement of rights of creditors, excluding however, the application of any "bulk sales" or "bulk transfer" laws. Unless otherwise disclosed herein, the performance hereof by Seller does hereby covenantnot require the consent of or approval of any person, warrant and represent to Buyer as follows:
A. Seller has agency or court, and will convey goodnot conflict with, marketableresult in a breach of any term of, or constitute a default under any material agreement or instrument to which Seller is a party or any judgment, decree, order, statute, rule or regulation to which Seller is subject and insurable will not result in the creation of any lien, charge or encumbrance on the Seller or the Acquired Assets. The execution, delivery and performance of this Agreement in accordance with its terms, do not violate the articles of incorporation or bylaws of Seller.
b) Seller is the owner of and has good and marketable title to the Property Acquired Assets, free and clear of all mortgages, pledges, claims, liens, encumbrancescharges, claims and charges; subject only to general real estate taxes and installments for special assessmentseasements, if anyrestrictions, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements encroachments or other easements for right-of-way encumbrances other than the obligations of record, utility easements or other easements for right-of-way Seller thereunder.
c) All records of record, Seller are current and existing tenant leases, and except for such other matters as are approved or waived by accurate.
d) Seller shall use commercially reasonable efforts to assist Buyer in writingobtaining from each person, firm, association, corporation, partnership and governmental authority, any and all consents and approvals to the sale, conveyance, transfer and assignment of the Acquired Assets, which is required by the terms of any statute, ordinance, regulation, lease or contract to which Seller is a party, or otherwise. In furtherance of the foregoing, Buyer hereby agrees to cooperate with Seller to the extent reasonably necessary to obtain any such consents or approvals.
B. There is no litigation pending, or to e) To the best of Seller’s 's knowledge, after due inquiry and investigation, condemnation there is no pending or threatened suit, action or litigation, or administrative, arbitration or other proceeding of any kind or governmental inquiry or investigation threatened against or affecting the Seller Acquired Assets (i) which may have a result in any material adverse effect upon the Property.
C. To the best Acquired Assets or Seller's business associated therewith, (ii) which may result in any material liability accruing to Buyer as a result of Seller’s knowledgeexecution, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date delivery and/or performance of this Agreement and or any of the closing datetransactions contemplated hereby, or (iii) which seeks to enjoin, prohibit or challenge the validity of this Agreement or any of the transactions contemplated hereby.
E. To Seller’s knowledgef) Other than payroll taxes due and owing in the ordinary course of business (all of which have been timely paid up to the Closing Date), Seller has disclosed to Buyer all information taxes of every kind and description (whether incurred in respect of, or measured by, income, sales or otherwise) relating to the Property that could reasonably business of Seller and to any date or period of time prior to the Closing Date and payable to the United States, the states thereof, and any other taxing authority, which are due prior to the Closing Date, have been paid in full (or will be expected paid in full prior to have a the Closing Date), and Seller is not delinquent, in any material adverse effect on respect, with respect to any tax payment or assessment. There are no audits or material claims pending or threatened, concerning taxes or assessments asserted against Seller by any taxing authority or agent thereof, nor are there outstanding any requests by Seller or its agents for any extension of time relating to the Propertyfiling, reporting, declaration, assessment or payment of any tax. On or prior to the Closing Date, Seller, at Seller's expense, shall discharge any and all such tax liens and encumbrances.
F. In the event g) Seller subsequently becomes aware of a fact that has duly filed all tax returns and other reports required to be filed by it with all proper taxing authorities and has paid or accrued all taxes, interest, penalties, assessments or deficiencies called for by such returns and reports or claimed to be due by any of the representations and warranties made herein such taxing authority. There are no longer true and accurateagreements, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials waivers or other laws, rules, regulations, ordinances or orders arrangements providing for extensions of time with respect to the Propertyassessment or collection of any unpaid tax against Seller, nor are there any actions, suits, proceedings, investigations or claims now pending against Seller in respect of any material unpaid tax, or any matters under discussion with any Federal, state or local authority relating to any unpaid taxes.
H. To h) No broker or finder has acted for Seller in connection with the best transactions contemplated by this Agreement.
i) Seller represents and warrants to Buyer that: (A) Seller is not now, nor as a result of the transaction contemplated by this Agreement will be, insolvent or unable to pay its debts or other obligations as they become due; (B) Seller's assets, at a fair valuation, are, and after consummation of the transaction contemplated by this Agreement will continue to be, greater than all of said Seller's debts; (C) Seller is generally paying its debts as they become due; (D) the sale and transfer of the Acquired Assets has not been contemplated to, nor will it be consummated with the intent to, defraud, hinder, or delay Seller's creditors; and (E) the transfer of the Acquired Assets has not been concealed from any of Seller’s knowledge, the Property 's creditors.
j) Seller is not contaminated witha party to any contracts or agreements with any Soliciting Entity. Further, nor threatened with contamination from outside sources by any chemical, material Seller knows of no fact or substance to occurrence which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose would create and/or constitute a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien default on the property at the time part of closing nor shall Seller place either The Flower Club International, Inc. or any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for DeedSoliciting Entity under any such contract.
Appears in 1 contract
Samples: Asset Purchase Agreement (Florafax International Inc)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property of record, free and clear of all liens, encumbrances, claims leases, claims, and charges; subject only to general real estate taxes and installments for special assessmentsall easements, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way of recordway, utility easements or covenants, conditions and restrictions; and any other easements for right-of-way of recordmatters affecting title thereto, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingwriting (the "Permitted Encumbrances").
B. To the best of Seller's knowledge and belief, the conveyance of the Property pursuant hereto will not violate any applicable statute, conditional use, variance, ordinance, governmental restriction or regulation, or any private restriction or agreement.
C. The Property is benefited by direct access to a publicly dedicated street or road and other adjacent right of ways and shall be conveyed as a separate legal and tax parcel ("Legal Parcel").
D. There is no litigation pending, or to the best of Seller’s 's knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller Seller, which may have a material adverse effect upon the Property.
C. E. Seller is not a "foreign person" (as defined in section 1445(f)(3) of the Internal Revenue Code and regulations issued thereunder).
F. Seller is not aware of any private covenant or restriction that would prohibit or adversely impact the development or operation of the Property.
G. To the best of Seller’s 's knowledge, Seller represents that there are no underground tanks, xxxxxbasements, foundations, wells, cisterns, or other xxher underground structures or debris of any nature on the Property. Seller further represents that the Property is not located in a designated flood plain, nor does the Property contain any wetlands.
D. H. Seller has the requisite power and authority to enter into and perform this Agreement and those Seller's Closing Documents to be signed by it.
I. The improvements and personal property located on or used for the Property Improvements (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in sound condition and in good working order and in reasonable condition for the age of the improvements as of the effective date of this AgreementEffective Date hereof. Seller shall further have the ongoing on-going obligation up through the closing Date of Closing to inform Buyer of any defect in the improvements Improvements that occur between the effective date Effective Date of this Agreement and the closing dateClosing Date.
E. J. To Seller’s 's knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In . If the event Seller subsequently becomes aware of a the fact that any of the representations and warranties made herein are is no longer true and accurate, then the Seller shall promptly immediately disclose the same to the Buyer. Each of the warranties and representations contained in this Section or in and other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date Date of closing Closing. Seller shall indemnify Buyer, its successors and assigns, against, and shall survive the closing.
G. To the best of Sellers’ knowledgehold Buyer, there are no violations its successors and assigns, harmless from, any costs, expenses or damages of any citykind or nature, countyincluding reasonable attorneys' fees, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best which Buyer may incur because of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage breach of hazardous or regulated substances.
I. All any of the lease information provided representations and warranties herein contained, whether incurred prior to Buyer pursuant to Section 15 or after the Date of Closing. All warranties, representations and indemnifications contained in this Agreement is complete, true and accurateshall survive Closing.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase Agreement (Aei Income & Growth Fund 25 LLC)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents Purchaser that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date Closing Date:
(a) The information set forth in SCHEDULE A, SCHEDULE B, SCHEDULE B1, SCHEDULE C, SCHEDULE D, SCHEDULE F and SCHEDULE G attached hereto is true and correct (with the exception of closing a reduction in unpaid principal balance due to receipt of regularly scheduled payments of principal), unless otherwise disclosed to the Purchaser in writing at or prior to Closing, and shall survive each Mortgage Loan, unless otherwise noted on SCHEDULE A, has been fully disbursed;
(b) Each Mortgage Loan listed in SCHEDULE A is a performing loan, under the closingoriginal or modified terms thereof, and is not materially in default except as may be specifically disclosed in SCHEDULE A;
(c) The Mortgage Loans have been assigned to and accepted by the Holder pursuant to the Holder's requirements, as indicated on SCHEDULE A. No act or omission of the Seller would result in, and no facts or circumstances known to the Seller exist which would result in, (1) the Mortgage Loans being ineligible for purchase or investment by the respective Holder, or (2) the reassignment of the Mortgage Loans to the Seller prior to the applicable Servicing Transfer Date, or to the Purchaser after the applicable Servicing Transfer Date;
(d) The Mortgage Loans, all documents related thereto, and the Escrow Accounts are in compliance with applicable requirements of the Holder, FHA or GNMA as appropriate.
G. (e) Except as set forth on SCHEDULE F, no approvals, authorizations or consents of any Holder are required in connection with the execution, delivery and performance of this Agreement by the Seller.
(f) No advance or advances on behalf of the mortgagor are outstanding other than disbursement of the proceeds of the Mortgage Loan;
(g) Seller (i) owns the Servicing and (ii) is maintaining in accordance with the Holder's, FHA's and GNMA's requirements as appropriate the Escrow Accounts, free of any liens, charges, or encumbrances, other than the rights of the Holder and the mortgagor under the Mortgage Loan, and Seller has full right to sell, assign, and transfer legal title to the Servicing and all of its rights and interests in and to the Escrow Accounts pursuant to this Agreement;
(h) The mortgage, deed of trust, or deed to secure debt ("mortgage") is a valid, subsisting, and enforceable first lien or, if approved by Holder or FHA as appropriate, second lien, on the mortgaged property, including all buildings on the mortgaged property; such lien is subject only to (i) the lien of the current real property taxes and assessments not yet due and payable, and (ii) covenants, conditions and restrictions, rights of way, easements, and other matters of the public record which are acceptable to Holder or FHA as appropriate and mortgage institutions generally, and which are specifically referred to in the lender's title insurance policy delivered to the originator of the Mortgage Loan and to FHA or the Holder as appropriate. The representation and warranty set forth in this subsection is made solely in reliance on the policy of title insurance issued in regard to the Mortgage Loan;
(i) To the best knowledge of Sellers’ knowledgeSeller, any security agreement, chattel mortgage, or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting, and enforceable first lien and first priority security interest on the property described therein and no act or omission of the Seller has impaired or could impair the lien of such security agreement, chattel mortgage or equivalent document. To the extent that this representation and warranty shall be incorrect on the Closing Date, Seller shall promptly take action to correct such deficiency; if such correction cannot be accomplished through reasonably diligent efforts of Seller, then Seller shall indemnify Purchaser as hereinafter provided in paragraph 14 of this Agreement;
(j) A valid policy of title insurance has been issued for each of the Mortgage Loans in an amount not less than the Mortgage Loan amount, and is in full force and effect;
(k) The mortgaged property is insured under customary property insurance policies against insurable risks and hazards as required by Holder or FHA as appropriate, and such insurance is in amounts which are not less than the amount necessary to meet the requirements of Holder or FHA as appropriate, and all premiums for such insurance have been paid as required by the policies through the Closing Date, except as disclosed to and approved in writing by Purchaser;
(l) Seller has serviced the Mortgage Loans, and will continue to service the Mortgage Loans through the Closing Date, in accordance with sound and prudent mortgage banking practice and the rules, regulations or requirements of Holder or FHA as appropriate, and no termination fees, rights of first refusal, or any other similar obligations under or relating to any servicing agreement exist as to any of the Mortgage Loans which are enforceable, except as are specifically disclosed on SCHEDULE A;
(m) Seller has not received notice of, and has no actual knowledge of, any intention to prepay any Mortgage Loan, except as disclosed to Purchaser.
(n) The Escrow Accounts are subject to and have been administered in accordance with the normal requirements of the Holder or FHA as appropriate, as to where and in what form such Escrow Accounts need be maintained, and are not subject to any agreements regarding investment except as has been expressly disclosed in writing to the Purchaser;
(o) Seller has good and marketable title to the Assets owned by it and described in SCHEDULE C, free and clear of all liens, claims, charges, security interests and other encumbrances of any kind or nature;
(p) No consents by any third-party other than the Holders, FHA and GNMA need be obtained by Seller in order for it to execute, deliver and perform its obligations under the Purchase Agreement.
(q) Seller is the sole owner of the Servicing, the Pipeline, the Faxxxx Xax Xrior Approval Loans and the Assets, and is custodian of the Escrow Accounts, and the transfer, assignment and delivery of the Servicing, the Pipeline, the Faxxxx Xae Prior Approval Loans and the Assets, and the Seller's rights and interests in the Escrow Accounts, in accordance with the terms and conditions of this Purchase Agreement will vest in Purchaser all rights therein as free and clear of any and all interests, liens, security interests, claims, charges, defenses, offsets, and encumbrances of any kind or nature whatsoever, including but not limited to those of Seller.
(r) As of the date hereof and as of the Closing Date, (i) Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) Seller has full authority to execute and deliver this Purchase Agreement and all documents required pursuant hereto and to perform all of the obligations set forth hereunder and thereunder; (iii) this Purchase Agreement evidences the valid, binding and enforceable agreement of Seller, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally, and by general equitable principles, whether enforcement is sought by proceedings in equity or at law; (iv) Seller is duly qualified as an FHA approved mortgagee, a GNMA Issuer and a Faxxxx Xax Xeller/Servicer; and (v) neither the execution of this Agreement nor the consummation of the transactions described herein is a violation of the Seller's articles of incorporation, by-laws or other organizational documents, or of any agreement, contract, law, judgment, order, rule or regulation by which Seller is bound.
(s) Seller has delivered to Purchaser the current financial statements of Seller (including the notes relating thereto) (the "Financial Statements"). The Financial Statements have been prepared in accordance with generally accepted accounting principles, fairly present the financial condition and results of the operations of Seller, and are consistent with the books and records of Seller. Since the date of the Financial Statements, there are has been no violations change which has had or could reasonably be expected to have, together with all other changes, a material adverse effect in the business, financial condition, results of any cityoperations or properties of Seller.
(t) Seller acknowledges that the sale of the Property to the Purchaser under this Agreement constitutes a sale of substantially all of the assets of the Seller, countyand represents, statewarrants and covenants to the Purchaser that (i) such a sale will not constitute or be deemed to be a preference or fraudulent conveyance to the Purchaser, federaland (ii) all legal requirements relating to a sale of substantially all of its assets, land useincluding but not limited to all necessary public filings, firehave been complied with by the Seller or shall be complied with on or before the Closing Date.
(u) Between the date of this Agreement and the Closing Date, healthSeller will afford Purchaser and its representatives (collectively, safety"Purchaser's Advisors") full and free access to the Seller's personnel, environmentalproperties, hazardous materials or contracts, books and records, and other lawsdocuments and data, rules(b) furnish Purchaser and Purchaser's Advisors with copies (at Purchaser's cost) of all such contracts, regulationsbooks and records, ordinances or orders and other existing documents and data as Purchaser may reasonably request, and (c) furnish Purchaser and Purchaser's Advisors with respect such additional financial, operating, and other data and information as Purchaser may reasonably request, provided however that such material must reasonably relate to the Property.
H. To (v) Between the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 date of this Agreement is completeand the Closing Date, true Seller will:
(i) conduct its business only in the ordinary course of business; and
(ii) use its best efforts to preserve intact its current business organization, keep available the services of its current officers, employees, and accurateagents, and maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Seller.
J. There (w) Until such time, if any, as this Agreement is no terminated, Seller will not, directly or indirectly solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with, provide any non-public information to, or consider the merits of any unsolicited inquiries or proposals from, any person (other debt than Purchaser) relating to any transaction involving the sale of its business or lien assets (other than in the ordinary course of business, and other than assets which are not part of the Property), or any merger, consolidation, business combination, or similar transaction involving the Seller.
(x) For the first six (6) months after the Closing Date, the Seller shall refer exclusively to the Purchaser and its affiliates all applications which the Seller receives for commercial or multifamily mortgage loans to be made by the Seller. Seller agrees not to broker any multifamily or commercial mortgage loans, or applications for such loans, after the first six (6) months after the Closing Date.
(y) The Seller shall remain an FHA-approved mortgagee in good standing for at least ninety (90) days after the later of (i) the Transfer Date relating to the transfer to the Purchaser of the Servicing of the last FHA construction loan identified on SCHEDULE A as to which Servicing is to be transferred to the property at Purchaser or (ii) the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for DeedClosing Date.
Appears in 1 contract
Samples: Purchase Agreement (NHP Inc)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has Purchaser that the following matters are true and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date execution of this Agreement and will also be true and correct as of the closing dateClosing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Sections 8(a)(i) and 8(a)(ii) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
E. (b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, Seller has (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed to Buyer all information relating to in writing at the time of such delivery.
(d) There is no master lease of the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware any affiliate of a fact that any of the representations and warranties made herein are no longer true and accurateSeller, then the or if such master lease exists, Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed cause such master lease to be made terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and again as of the date of closing supplements delivered to Purchaser, and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of any cityall of the Contracts (as hereinafter defined in Section 7), countytrue, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property.
H. . To the best of Seller’s actual knowledge, the Property is not contaminated withContracts are in full force and effect, nor threatened with contamination from outside sources without material default by any chemicalparty and without any claims made for the right of setoff, material except as expressly provided by the terms of such Contracts or substance as disclosed to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property Purchaser in writing at the time of closing nor such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller place has not received any other debt actual written notice, and Seller has no actual knowledge (without any duty of inquiry or lien on investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the property other that Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the aforementioned Contract for Deed during this Contract for Deedphrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. (“TSCA”), the Occupational, Safety and Health Act, 29 U.S.C. § 651, et seq. (“OSHA”), the Clean Air Act, 42 U.S.C. § 7401, et seq. (“CAA”), the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (“FWPCA”), the Safe Drinking Water Act, 42 U.S.C. § 3001, et seq. (“SDWA”), the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, et seq. (“HMTA”) and the Emergency Planning and Community Right to Xxxx Xxx, 00 X.X.X. § 00000, et seq.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant represents and represent warrants to Buyer Purchaser as follows:
A. (a) The Assistant Secretary of Seller has the requisite power and authority to execute, deliver and perform his obligations under this Agreement, having received written authorization to proceed with the sale from the President of Seller. This Agreement constitutes the valid and binding obligation of Seller enforceable against Seller in accordance with its terms.
(b) The execution, delivery and performance of this Agreement does not and will convey goodnot (i) violate any law, marketableregulation, and insurable title to the Property free and clear of all liensjudgment, encumbrancesdecree, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements order or other easements for right-of-way directive of recordany court or governmental agency applicable to or binding upon Seller, utility easements or (ii) breach or constitute a default under any agreement to which Seller is a party or by which Seller is bound.
(c) Seller is the owner of the Shares of the Purchaser being sold, assigned, bargained and conveyed pursuant hereto, free from any security interest, pledge, option, equity, claim or other easements for right-of-way right or interest of recordany kind. Upon the sale to Purchaser, and existing tenant leasesPurchaser will acquire the Shares being transferred, and except for such free from any security interest, pledge, option, equity, claim or other matters as are approved right or waived by Buyer in writinginterest of any kind.
B. There is (d) Seller has received and carefully reviewed Purchaser’s filings with the Securities and Exchange Commission and Purchaser’s press releases posted on Purchaser’s website (the filings and press releases, the “Purchaser Disclosure”) and has had full access to Purchaser’s other directors and executives for purposes of discussion the Company’s condition, operations and plans. Seller acknowledges that no litigation pending, oral representations have been made or information furnished to the best of Seller or Seller’s knowledgerepresentatives that are in any way inconsistent with the Purchaser Disclosure. Seller confirms that no representations, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxxwarranties, or other underground structures agreements (whether express or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and wallsimplied) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties been made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders by Purchaser with respect to the Propertytransactions contemplated hereby, except for those representations, warranties, and agreements that are specifically set forth in this Agreement.
H. To (e) Seller, to the best of Seller’s knowledgeextent necessary, shall, without additional consideration, take such additional or further actions and execute such other or further documents as may be reasonably requested by Purchaser in order to evidence, confirm or carry out the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancestransactions contemplated hereby.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Shares Purchase Agreement (Preformed Line Products Co)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent As a material inducement to Buyer as followsto effectuate the transactions herein contemplated, Seller represents and warrants to and covenants and agrees with Buyer that:
A. (a) Seller has and will convey goodis a corporation duly organized, marketablevalidly existing, and insurable title in good standing under the laws of the State of Illinois, has all necessary powers to the Property free own its own property and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of recordcarry on its business as now conducted, and existing tenant leaseshas all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(b) Each Guarantor is a corporation duly organized, validly existing, and except for such other matters in good standing under the laws of its domicile, has all necessary powers to carry on its business as are approved or waived by Buyer in writingnow conducted, and has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Guaranty.
B. There is (c) The execution and delivery by Seller of this Agreement and the Lease, and the performance by Seller of its obligations hereunder and under the Lease, have been duly and validly authorized and no litigation pendingother actions or proceedings on the part of Seller are necessary to authorize such execution, or to delivery and performance. This Agreement has been duly executed and delivered by Seller and constitutes the best valid and legally binding obligation of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened enforceable against Seller in accordance with the Seller which may have a material adverse effect upon the Propertyterms hereof.
C. (d) The execution and delivery by Lease Guarantors of the Guaranty, and the performance by Lease Guarantors of their obligations under the Guaranty, have been duly and validly authorized and no other actions or proceedings on the part of Lease Guarantors are necessary to authorize such execution, delivery and performance. The execution and delivery of the limited guaranty of this Agreement by Parent Guarantor has been duly and validly authorized and no other actions or proceedings on the part of Parent Guarantor are necessary to authorize such execution, delivery and performance. The limited guaranty of this Agreement has been duly executed and delivered by Parent Guarantor and constitutes the valid and legally binding obligation of Parent Guarantor, enforceable against Parent Guarantor in accordance with its terms.
(e) To the best of Seller’s 's knowledge, Seller represents that there are no underground tanksthe execution and delivery of this Agreement, xxxxxthe Lease and the Guaranty, and the documents listed in Section 15 hereof will not violate any Legal Requirement or other underground structures or debris of any nature on the PropertyLaw.
D. The improvements (f) Seller and personal property located on or used for Lease Guarantors have obtained all consents which are necessary to enter into and perform their respective obligations under this Agreement, the Property Lease and the Guaranty.
(g) Seller has all requisite corporate power and authority to execute and deliver this Agreement and the documents listed in Section 15 hereof (including, but not limited towithout limitation, the utilitiesLease), mechanical systemsand the officers of Seller who did or will execute the same for and on behalf of Seller have the power and authority to do so and to bind Seller.
(h) No written or oral notice has been actually received by Seller, roofnor does Seller have actual knowledge, foundation of the violation by the condition of the Land and wallsImprovements of any Legal Requirement or Law which has not been corrected to the satisfaction of the issuer of the notice.
(i) To Seller's knowledge, there is no pending or threatened condemnation, eminent domain nor any other action, suit or proceeding affecting the Land or Improvements.
(j) The Land and Improvements are presently zoned for the Permitted Use and to Seller's knowledge, does not rely on any other property or unrecorded contractual rights for the Permitted Use to comply with applicable Legal Requirements and Seller knows of no actions or proceedings pending or contemplated which would affect such zoning.
(k) Seller has not placed or caused to be placed in, under or on, and has no knowledge of or reason to believe that there exists, any Hazardous Materials anywhere in, under or on the Land or the Improvements as a result of the acts of Seller or Seller's agents, contractors or licensees.
(l) To the best of Seller's knowledge, water, telephone, electricity, and storm sewer utilities are currently available (or will be available as of the Actual Closing Date) to the Improvements and related improvements at normal and customary rates, are adequate to serve the Project for the Permitted Use and are or will be fully paid for at Seller's sole cost and expense.
(m) None of Seller or Lease Guarantors has commenced, and neither is in the process of commencing, any bankruptcy or insolvency proceeding nor has any such proceeding been commenced against Seller or Lease Guarantors.
(n) To Seller's knowledge, the Improvements (except for the Incomplete Work) shall be, and, as of the Actual Closing Date, shall have been, in all material respects, constructed in accordance with the Construction Documents and all Legal Requirements.
(o) Seller shall not materially amend the plans and specification, the site plan or the other Construction Documents relating to the Improvements without Buyer's prior written consent, which consent shall not be unreasonably withheld.
(p) If applicable, Seller shall deliver to Buyer each revised construction schedule which, together with any other revisions of the schedule which have not been delivered to Buyer, revises the projected date of substantial completion of the Project by more than fifteen (15) days, promptly after each such revised schedule is issued.
(q) Seller shall deliver to Buyer copies of all (i) construction draw requests together with supporting documentation therefor, (ii) notices received from any governmental entity relating to the Project and (iii) copies of any default notices sent or received by Seller under the Construction Documents.
(r) All Due Diligence Materials are complete copies thereof.
(s) The current real estate tax bills cover more than the Land and Improvements. Seller is advised that a former owner has filed an application for an appropriate tax division. It is expected that the 2004 tax bills will reflect the division.
(t) Prior to Closing, Seller shall not do anything to adversely affect the structural integrity of the Improvements and Seller shall, at its own cost and expense, keep all parts or portions of the Project in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing daterepair.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. (u) To the best of Seller’s 's knowledge, Seller has received all Permits that are required for the Property is not contaminated withconstruction and completion of the Improvements, nor threatened and, other than the Final Certificate of Occupancy, to operate the Project for the Permitted Use in accordance with contamination from outside sources Legal Requirements.
(v) Seller shall diligently proceed to complete construction of the Improvements and obtain the Certificate of Substantial Completion and Seller shall promptly deliver to Buyer the Certificate of Substantial Completion and, if available before Closing, the Final Certificate of Occupancy, upon receipt thereof.
(w) Seller, on the Actual Closing Date, will have complied with all of its obligations hereunder which are to have been performed before or on the Closing Date, unless such compliance has been waived in writing by Buyer, and all warranties and representations made hereunder shall be true and correct in all material respects as of the Actual Closing Date, except as hereinafter expressly provided to the contrary.
(x) Seller, as Tenant, shall execute the Lease on or before the Actual Closing Date. On the Actual Closing Date there will be no Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default, of Tenant under the Lease.
(y) There are no land parcels, property interests, buildings, structures or other improvements that are owned by Seller or any chemical, material or substance of its affiliates which are in close proximity to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, the Land or which is known are necessary or useful for the operation of the Project for its Permitted Use that are not being conveyed pursuant to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesthis Agreement.
I. All (z) To the best of Seller's knowledge without inquiry, all storm water flowing from the Land shall, as of the lease information provided to Buyer pursuant to Section 15 of this Agreement is completeActual Closing Date, true and accuratedrain directly into a public way in compliance with all Legal Requirements.
J. (aa) To the best of Seller's knowledge without inquiry, the soil condition of the Land is such that it will support the Improvements for the foreseeable life thereof without the need for unusual or new subsurface excavations, fill, footings, caissons or other installations.
(bb) There is no other debt material dispute under or lien on with respect to performance of any of the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for DeedConstruction Documents.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. A. Seller does hereby covenantrepresents and warrants to Purchaser, warrant which representations and represent warranties shall be deemed made by Seller to Buyer Purchaser as followsof the Effective Date and as of the Closing Date that:
A. (1) There are no parties in possession of any portion of the Property;
(2) Seller has is the owner of the Property and is duly authorized and empowered to sell the Property.
(3) All obligations of Seller arising from the ownership and operation of the Property which accrue prior to the Closing Date, have been paid as they became due or will convey goodbe paid at or prior to Closing. Except for obligations for which provisions are herein made for proration or other adjustments at Closing, marketable, and insurable title there will be no obligations of Seller with respect to the Property free outstanding as of the Closing Date.
(4) As of the Closing Date there will be no recorded or unrecorded land leases affecting the Property.
(5) This Agreement when executed and clear delivered by Purchaser and Seller will constitute the valid and binding agreement of all liensSeller enforceable against Seller in accordance with its terms;
(6) Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated hereby will violate or be in conflict with; (i) any applicable provisions of law; (ii) any order of any court or government agency having jurisdiction over the Seller; or (iii) any agreement or instrument to which Seller is a party or which Seller is bound.
(7) that there are no actions, encumbrancessuits, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of recordproceedings pending or, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation contemplated or proceeding of any kind threatened against the Seller which may have a material adverse effect upon that could affect Seller’s ability to perform its obligations under this Agreement.
(8) Seller has not performed or permitted any third party to perform any alterations or improvements to the Property.
C. To (9) Seller has not received written notice that the best Property is in violation of Seller’s knowledgeany laws, ordinances, rules or regulations of the Village of Xxxxxxxxxx or any other governmental agency having jurisdiction over the Property. Notwithstanding anything contained in this Agreement to the contrary, all of the representations, warranties and certifications (the “Representations”) which are made by Seller represents that and set forth herein or in any of the documents or instruments required to be delivered by Seller hereunder, shall be subject to the following conditions and limitations: (i) there are shall no underground tanks, xxxxx, liability on the part of Seller for breaches of Representations of which Purchaser had actual knowledge at Closing; and (ii) Purchaser shall not have the right to bring any lawsuit or other underground structures or debris legal action against Seller, nor pursue any other remedies against Seller, as a result of any nature on the breach of the Representation of which Purchaser had actual knowledge at the Closing, but Purchaser’s sole right shall be to terminate this Agreement in which event, the Xxxxxxx Money all extension payments made and all interest accrued thereon shall be returned to Purchaser and Seller shall reimburse Purchaser for its out of pocket costs incurred in connection with the Property, up to the amount of $25,000.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between B. From the effective date of this Agreement and until the closing date.
E. To Seller’s knowledgeClosing Date or earlier termination of this Agreement, Seller has disclosed covenants to:
(1) to Buyer all information relating to advise Purchaser promptly of any litigation, arbitration or administrative hearing before any governmental body or agency of which Seller is notified, concerning or affecting the Property which is instituted after the date hereof;
(2) to not take, or omit to take any action that could reasonably would have the effect of violating any of the material representations, warranties, covenants, and agreements of Seller contained in this Agreement; and
(3) not, without Purchaser’s written consent, transfer any interest in the Property, grant any easements, enter into any licenses, leases, options or other agreements that would be expected to have a material adverse effect binding on Purchaser or the Property after Closing or otherwise encumber any portion of the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Inland Land Appreciation Fund Ii Lp)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title hereby represents to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or Purchaser that to the best of Seller’s knowledge:
1. There are no parties other than those controlled by the Seller in possession of any portion of the Property;
2. Seller is duly authorized and empowered to sell the Property;
3. Seller has paid or will pay, investigationall property taxes, charges, debts, and other assessments that are due and payable as of the Closing Date;
4. All obligations of Seller arising from the ownership and operation of the Property which accrue prior to the Closing Date, have been paid as they became due or will be paid at or prior to Closing. Except for obligations for which provisions are herein made for proration or other adjustments at Closing, there will be no obligations of Seller with respect to the Property outstanding as of the Closing Date;
5. Seller is not aware of any unrecorded liens caused by Seller against the Property that will not be satisfied at Closing;
6. Seller has not received notice of the commencement of any legal action against Seller for the damaging, taking or acquiring of all or any part of the Property, either temporarily or permanently, by condemnation or proceeding by exercise of the right of eminent domain;
7. Seller has not received any written notice that alleges a violation of law or governmental ordinances, orders or requirements relating to the Property, that was issued prior to the date of this Agreement to Seller by any governmental department or agency having jurisdiction as to conditions affecting the Property, and with respect to which any corrective action was not completed prior to the date of the execution of this Agreement by Seller;
8. Seller has full power, authority and capacity to enter into and perform this Agreement and its obligations under this Agreement and this Agreement is binding on Seller and enforceable again Seller in accordance with its terms and Seller’s consummation of this transaction will not violate any restriction, court order or agreement to which Seller or the Property are subject. That all individuals executing this Agreement and other documents necessary to consummate this transaction for and on behalf of Seller have the authority to do so and that Seller has taken all necessary actions, pursuant to Illinois law, authorizing execution of this Agreement and sale of the Property by Seller pursuant to the terms hereof; and
9. Seller has no knowledge and has received no notice of any kind special assessment or other impositions pending, contemplated or threatened against the Seller which may have a material adverse effect upon with respect to the Property.
C. To B. No other express or implied representations or warranties are made with regard to the best property or matters relating thereto and, subject to and without limitation of Seller’s knowledgethe representations contained in subparagraph A above:
1. The property will be sold and conveyed to the Purchaser on as “AS IS” basis without any representations or warranties of any kind, express or implied, either oral or written, made by the Seller represents that there are no with respect to the physical, environmental, zoning or structural condition of the property or with respect to the existence or absence of underground fuel storage tanks, xxxxxtoxic or hazardous materials, substances or other underground structures wastes in, on, under or debris of any nature affecting the property, including but not limited to, asbestos about or on the Propertyproperty, and subject to existing zoning, flood plain and any other restrictions on the use or development of the property. All warranties with respect to the property are hereby expressly disclaimed. Except as provided below regarding the scope of Purchaser’s indemnity commitment, any risk and all responsibility relating to any condition of the property, including, but not limited to, any of the above- described conditions, are assumed by Purchaser and disclaimed by the Seller.
D. 2. Purchaser shall examine the property and conduct its own inspection and investigation of the property (including, without limitation, environmental inspections and investigations). The improvements Purchaser shall take all necessary action and personal bear all expenses and liability associated with making the property suitable for the Purchaser’s intended use and complying with all applicable law. Further, upon closing, as between Purchaser and Seller, Purchaser shall bear all responsibility, liability and obligation for the physical, environmental, zoning and structural condition of the property and the taxable, non-residential development, business or operations to be located on the property.
3. Purchaser waives, generally releases and covenants not to xxx or used for make any claim whatsoever against the Property Seller regarding the foregoing matters and all matters within the scope of the following indemnity commitment, including, but not limited to, any claim by Purchaser against the Seller resulting from a third-party claim against Purchaser due to the negligent or unlawful acts or omissions of the Seller. Purchaser shall, at its sole cost and expense, unconditionally indemnify, defend and hold the Seller harmless from and against any loss, liability, damage (whether or not ultimately successful), penalties, fines, injunctions, suits, proceedings, disbursements and court costs) arising under any present or future local, state or federal law (and the amendments, regulations, orders or decrees promulgated thereunder) which may be incurred by or against the Seller directly or indirectly resulting from the condition of the property including, but not limited to, the utilitiespresence and/or removal of asbestos, mechanical systemsenvironmental hazards and/or the presence or removal of underground fuel storage tanks, roof, foundation except to the extent a claim is made directly against the Seller and walls) are in good working order and in reasonable condition for is determined by a court of competent jurisdiction to arise directly from the age unlawful acts or omissions of the improvements as of the effective date of this AgreementSeller prior to closing. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement Purchaser’s obligations, indemnifications and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders risk with respect to the Property.
H. To condition of the best property under this paragraph shall survive the closing of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safetysale of the property, and shall not merge in the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesdeed.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. As an inducement for Buyer to enter into this Agreement, as of the date hereof and as of the Closing Date, Seller does hereby covenantrepresents, warrant warrants, and represent to Buyer agrees as follows:
A. 2.1 This Agreement has been or, as of the Closing Date, will have been duly executed and delivered by Seller and constitutes or, upon execution, will constitute a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and by limitations on the availability of equitable remedies).
2.2 Seller has and at the time of the Closing Date will convey goodhave, marketable, good and insurable indefeasible title to the Property Asset and on the Closing Date, Seller will deliver the Asset free and clear of all any liens, encumbrancesclaims, claims security interest or other encumbrances created by or through Seller,
2.3 Seller has full power and chargesright to sell and transfer the Asset to Buyer pursuant to the terms hereof and shall deliver such approval from Legend LP as the Buyer may require to be assured that the transfer of the Asset to Buyer has been recorded on the books of Legend LP.
2.4 The Seller understands that an investment in the Buyer is subject to substantial risks.
2.5 The Seller has been given access to full and complete information regarding the Buyer and has utilized such access to the Seller’s satisfaction for the purpose of obtaining such information regarding the Buyer as the Seller has reasonably requested. In particular, the Seller has been given a reasonable opportunity to review such documents as Seller has requested and to ask questions of, and to receive answers from, representatives of the Buyer concerning the terms and conditions of the Exchange Shares and the business and affairs of the Buyer and to obtain any additional information concerning the Company’s business to the extent reasonably available so as to understand more fully the nature of the investment and to verify the accuracy of the information supplied.
2.6 The Seller, in determining to exchange its Assets, (i) has been encouraged to seek and has had the opportunity to rely upon the advice of the Seller’s legal counsel, accountants, and other advisors with respect to the Exchange Shares, and (ii) has relied solely upon the advice of the Seller’s legal counsel, accountants, or other financial advisors with respect to the financial, tax, and other considerations relating to the Exchange.
2.7 The Seller (i) can bear the economic risk of the Exchange Shares for its Assets, including a total loss of the Seller’s investment; subject only (ii) has such knowledge and experience in business and financial matters as to general real estate taxes be capable of evaluating the merits and installments for special assessmentsrisks of this shares exchange transaction, or the Seller is being advised by others (acknowledged by the Seller as being the “Seller’s Representative(s)”) such that they and the Seller together are capable of making such evaluation.
2.8 The Seller acknowledges and understands that the Exchange Shares are a speculative investment in a small-cap company that involves a high degree of risk and there can be no guaranty of the amount of or type of consideration, profit or loss to be realized, if any, not yet levied and certified as a result of the Exchange Shares for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingthe Assets.
B. There is no litigation pending, or to 2.9 The Seller acknowledges and agrees that the best of Exchange Shares are being acquired for the Seller’s knowledge, investigation, condemnation own account and not on behalf of or proceeding for the benefit of any kind threatened against U.S. Person and the Seller which may have a material adverse effect upon sale and resale of the Property.
C. To Shares has not been prearranged with any U.S. Person or buyer in the best of Seller’s knowledge, United States. The Seller represents that there are no underground tanksand warrants that, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement agreement, the Seller has no present plan or intention to sell the securities in the U.S. at any predetermined time. The Seller represents, warrants, and again as covenants that neither the Seller nor its affiliates nor any person acting on its or their behalf has entered into, has the intention of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledgeentering, there are no violations of or will enter into any cityoption, county, state, federal, land use, fire, health, safety, environmental, hazardous materials equity swap or other laws, rules, regulations, ordinances or orders similar derivative instrument in the U.S. with respect to the PropertyExchange Shares at any time until the end of a period of six months from the date of this Agreement. Nothing herein shall prevent the Seller from selling the securities acquired hereunder in accordance with U.S. securities laws.
H. To 2.10 The Seller understands that the best Exchange Shares are not registered under the Securities Act or the securities laws of Seller’s knowledgeany state, are “restricted securities” within the meaning of Rule 144 under the Securities Act, and are subject to substantial restrictions on transfer.
2.11 The Seller understands that until such time as the Exchange Shares are registered with appropriate regulatory authorities allowing Shares to be freely transferable, or the applicable holding period and other conditions for sale have been satisfied for the Exchange Shares to be sold pursuant to an exemption from the requirements for registration of the Exchange Shares, the Property is not contaminated withSeller may be precluded from selling or otherwise transferring or disposing of the Exchange Shares.
2.12 The Seller understands that, nor threatened with contamination from outside sources by any chemicalexcept upon certain limited circumstances, material or substance to which exposure is prohibitedthe restrictions on the sale, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safetytransfer, and disposition of the Property has never been used Exchange Shares will also apply to any and all shares of capital stock or other securities issued or otherwise acquired with respect to the Exchange Shares including, without limitation, any other shares or securities issued or acquired as a landfillresult of any stock dividend, dump site, underground improvements stock split or for storage exchange or any distribution of hazardous shares or regulated substances.
I. All of the lease information provided to Buyer securities pursuant to Section 15 of this Agreement is completeany corporate reorganization, true and accuratereclassification or similar event.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forge Innovation Development Corp.)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant makes the following representations and represent to Buyer as followswarranties and covenants:
A. 8.01 Seller is a limited liability company duly organized, validly existing, and in good standing in the State of Delaware. Seller has the full right and will convey good, marketableauthority and has obtained any and all consents required to enter into this Contract and to consummate or cause to be consummated the transactions contemplated hereby. This Contract has been, and insurable title all of the documents to be delivered by Seller at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms, except to the Property free extent that such enforcement may be limited by applicable bankruptcy insolvency, moratorium and clear other principles relating to or limiting the rights of all lienscontracting parties generally.
8.02 Seller is not a "foreign person", encumbrancesas defined in recent amendments to the Internal Revenue Code and, claims and charges; subject only at Closing the, agrees to general real estate taxes and installments for special assessmentsprovide to Title Company, if anyapplicable, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingan affidavit to that effect.
B. 8.03 There is are no litigation pendingparties in possession of any portion of the Property as lessees or tenants at sufferance.
8.04 Seller has not received written notice of, nor to Seller's current, actual knowledge are there, any action, suit, arbitration, unsatisfied order or to the best of Seller’s knowledgejudgment, investigation, condemnation government investigation or proceeding pending against Seller that arises out of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best ownership of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (includingwhich, but not limited toif adversely determined, could individually or in the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for aggregate materially interfere with the age consummation of the improvements as of the effective date of transaction contemplated by this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to Contract or have a material adverse effect on the Property.
F. In 8.05 Seller has not received written notice of any condemnation proceedings relating to the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closingProperty.
G. 8.06 To the best of Sellers’ Seller's current, actual knowledge, there are no violations attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any other debtor relief laws contemplated by or pending or threatened against Seller or the Property.
8.07 Seller has not received notice of (a) any existing special assessments or similar taxes, charges or assessments relating the Property or (b) any recapture fees owed to any governmental authority having authority over the Property that are due and payable upon the sale of the Property to Purchaser.
8.08 Seller has not received written notice of, nor to Seller’s actual knowledge, is there any litigation which has been filed against Seller that arises out of the ownership of the Property or would materially affect the Property or the use thereof, or Seller’s ability to perform hereunder.
8.09 Seller not received written notice of any city, county, state, uncured violation of any federal, land usestate or local law relating to the use or operation of the Property which would materially adversely affect the Property or use thereof except for the following Notices of Prohibited Conditions issued by the City of St. Petersburg Code Enforcement Board: Case Numbers # 21-00018461, fire# 21-00018464, health#21-00017437OG, safety#21-00017439, environmentaland #21-00017385OG (collectively referred to as the “Notices”) for the property located at 200 0xx Xxxxxx Xxxxx (XXX # 19-31-17-21006-000-0060), hazardous materials 400 0xx Xxxxxx Xxxxx, (XXX# 19-31-17-21006-000-0080), 200 0xx Xxxxxx Xxxxx (XXX # 19-21-17-21006-000-0040), 400 0xx Xxxxxx Xxxxx (XXX # 19-31-17-210006-000-0010) and 400 0xx Xxxxxx Xxxxx (XXX # 19-31-17-210006-000-0030442).
8.10 Seller has received no notice of a violation of any covenant or easement affecting the Property.
8.11 There are no service agreements or contracts or other lawsagreements affecting the Property or the operation thereof which cannot be terminated on thirty (30) days notice. In addition, rulesSeller hereby represents and warrants, regulationsthat any outstanding fees or expenses due any entities or individuals engaged by Seller, ordinances or orders any Seller affiliate, to provide services in any way related to the Property, including for the preparation of plans, reports and drawings related to the development of the Property, shall be paid in full on or before Closing.
8.12 Until the Closing, Seller shall maintain the Property in its present condition and repair, reasonable wear and tear excepted and continue its efforts to deter any unauthorized occupancy of the buildings currently located on the Real Property pending demolition and removal (“Buildings”). Additionally, between the date of this Contract and the Closing, Seller shall not enter into any agreements affecting the Property, unless same are terminated prior to Closing, without the prior written consent of the Purchaser, which consent will not be unreasonably withheld.
8.13 Seller has not conducted a Phase II Environmental Site Assessment to investigate the subsurface of the Real Property. Seller did engage ECS Florida, LLC to conduct certain asbestos surveys at the Buildings, copies of which are included in the Seller’s Materials. To the Seller’s Knowledge, Seller has not received any written notice from any governmental or regulatory authority of any violation of applicable Environmental Laws with respect to the Property.
H. To . For the best purposes of Seller’s knowledgethis Section, the Property is not contaminated with, nor threatened with contamination from outside sources by “Environmental Laws” means any chemical, material or substance to which exposure is prohibited, limited or regulated by and all federal, state, countycounty and local statutes, local laws, regulations and rules in effect on the date of this Contract relating to the use, transportation and disposal of Hazardous Materials.
8.14 Except as otherwise specifically set forth herein, with respect to the Seller, wherever the term “actual knowledge” or regional authorities“knowledge” is used above, it shall refer to the actual present and conscious awareness or knowledge of ________ for the Seller, without any duty of inquiry or investigation; provided that so qualifying Seller's knowledge shall in no event give rise to any personal liability on the part of ________ or any officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms “actual knowledge” or “knowledge” do not include constructive knowledge, imputed knowledge, or knowledge Seller or ________ do not have but could have obtained through further investigation or inquiry. No broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. The provisions of this Section 8.14 shall survive the Closing.
8.15 Seller shall notify Purchaser promptly if Seller becomes aware of any transaction or occurrence prior to a Closing that would make any of the representations or warranties of Seller inaccurate in any material respect. If as part of the foregoing notification, Seller agrees to take the necessary action to eliminate the material inaccuracy in any such representation or warranty on or before the date of the Closing and if Seller does so eliminate or remove such material inaccuracy, the terms and provisions of this Contract shall remain in full force and effect and Purchaser shall complete the Closing of the Property as specified herein. In the event that prior to a Closing, Purchaser discovers that any of such representations or warranties are not accurate in any material respect, Purchaser shall notify Seller thereof in writing and Seller shall have ten (10) Business Days after receipt of such notice (and the Closing will be extended if necessary to allow for the running of such ten (10) day period) to notify Purchaser whether it will cure such inaccuracy prior to the Closing. If either in a notice from Seller to Purchaser notifying Purchaser of a material inaccuracy in any representation or warranty or if Seller does not respond to Purchaser’s notice of a material inaccuracy or in a response, Seller does not agree to correct such inaccuracy, then Purchaser may elect to terminate this Contract and its obligations hereunder (except the obligations specified in Section 2.03) by notifying Seller in writing of such termination ten (10) Business Days after either receiving any aforementioned notice from Seller or Seller’s failure to respond to Purchaser’s notice (and the Closing shall be extended to permit the running of such ten (10) Business Day period) as Purchaser’s sole and exclusive remedy for such material inaccuracy. Upon such termination, Purchaser shall receive a return of the Exxxxxx Money and Purchaser’s Costs. If Purchaser does not elect to terminate this Contract as described above and proceeds to Closing, then then Purchaser shall be deemed to have irrevocably and absolutely waived, relinquished and released all rights and claims against Seller for any damage or other loss arising out of or resulting from such untrue or inaccurate representation or warranty or such unfulfilled or unsatisfied covenant or condition. All representations and warranties contained herein (as the same may need to be modified on or before the Closing Date to reflect current information) and all representations and warranties contained in any Closing Document, except where discovered and waived by Purchaser prior to Closing as aforesaid, shall survive the Closing hereunder for a period of six months (“Survival Period”) and shall not be deemed to have been waived at the Closing or merged into any of the documents of conveyance or transfer to be delivered by Seller at the Closing. Provided, however, Seller shall (a) have a reasonable cure period to resolve such claim, timely raised by Purchaser, to Purchaser’s reasonable satisfaction but in no event longer than 30 days (which is known cure period shall toll the Survival Period) and (b) be liable only for direct and actual damages suffered by Purchaser on account of Seller's breach not to pose exceed a risk maximum aggregate cap of Two Hundred and Fifty Thousand Dollars ($250,000.00) and not for (i) indirect, consequential or punitive damages or (ii) for any representation or warranty herein contained, unless on or prior to health and safetythe expiration of the Survival Period, Purchaser shall have (A) notified Seller in writing setting forth specifically the representation or warranty allegedly breached, and a description of the alleged breach in reasonable detail and (B) filed a complaint or petition against Seller alleging such claim in an appropriate state or federal court in the county in which the Property has never been used as a landfillis located, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All no later than 30 days after the expiration of the lease information provided Survival Period and the damages suffered by Purchaser from all alleged warranty breaches is estimated in good faith by Purchaser to Buyer pursuant to Section 15 be greater than Twenty Five Thousand Dollars ($25,000.00). The provisions of this Agreement is complete, true and accurateSection 8.15 shall survive the Closing.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
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Representations, Warranties and Covenants of Seller. In order to induce Purchaser to enter into this Agreement and purchase the Premises, Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as followsPurchaser:
A. Seller is a duly organized and validly existing corporation under the laws of the State of Minnesota, (ii) Seller is qualified to do business in the state in which the Premises are located, (iii) the corporation has full right and authority to enter into this Agreement, (iv) each person signing on behalf of the corporation is authorized to do so, (v) the execution and delivery of this Agreement by Seller will convey goodnot constitute a default under any indenture, marketableagreement, contract, mortgage or other instrument to which Seller is a party, (vi) Seller is not a "foreign person" as that term is defined under Internal Revenue Code Section 1445(F)(3), and insurable title (vii) the sale of the Property is not subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445(F)(3).
B. To Seller's knowledge, no action in condemnation, eminent domain or public taking proceedings are now pending or contemplated against the Premises.
C. To Seller's knowledge, no ordinance or hearing is now before any local governmental body which either contemplates or authorizes any public improvements or special tax levies, and there has been no public improvements constructed, the cost of which may be assessed against the Premises. There are no special assessments currently a lien against or encumbering the Premises, except as shown by the Commitment.
D. To Seller's knowledge, there is no actual or threatened action, litigation, or proceeding by any organization, person, individual or governmental agency (including governmental actions under condemnation authority or similar proceedings) affecting the Premises.
E. Seller has Marketable Fee Simple Title interest to the Property Premises.
F. Except as shown by the Commitment, there are no delinquent taxes against the Property, and there are no "Green Acres" taxes against the Property. Seller has not appealed any taxes or assessments payable against the Premises and has made no commitments or agreements with any taxing authorities pertaining to the payment of taxes and assessments against the Premises or the assessed value of the Premises.
G. The Premises will as of the date of closing be free and clear of all liens, security interests, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements leases or other easements for right-of-way of record, utility easements restrictions or objections to title other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingthan the Permitted Exceptions.
B. There is no litigation pending, H. All labor or material which have been furnished to the best of Premises during the one hundred twenty (120) days prior to the closing date have been fully paid for or will be fully paid for prior to the closing date so that no lien for labor or materials rendered can be asserted against the Premises.
I. To Seller’s 's knowledge, investigation, condemnation no fire insurance underwriter or proceeding of governmental authority has requested any kind threatened against alterations or any additions to the Seller which may have a material adverse effect upon the PropertyPremises.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. J. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ 's knowledge, there are no violations management, maintenance or service contracts, leases, licenses, purchase agreements, purchase options, rights of first refusal, or other unrecorded agreements affecting the Premises, except as set forth on EXHIBIT C. Seller agrees not to enter into any citynew, countyor modify any existing, written or oral service contracts, leases, licenses or other recorded or unrecorded agreements affecting the Premises hereafter without Purchaser's prior written consent which may be withheld in Purchaser's sole discretion.
K. To Seller's knowledge, Seller, in its ownership, use, maintenance and occupancy of the Property, is not in violation of and has not violated, any applicable federal, state, federalcounty or local statutes, land use, fire, health, safety, environmental, hazardous materials or other laws, regulations, rules, ordinances, codes, standards, orders, licenses and permits of any governmental authorities relating to environmental matters (being hereinafter collectively referred to as the "Environmental Laws"), including by way of illustration and not by way of limitation, (A) the Clean Air Act, the federal Water Pollution Control Act of 1972, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Toxic Substances Control Act, or the Minnesota Environmental Response and Liability Act (including any amendments or extensions thereof and any rules, regulations, ordinances standards or orders with respect guidelines issued pursuant to any of said Environmental Laws). To Seller's knowledge, during Seller's period of ownership of the Property.
H. To , (i) neither Seller, its agents, employees and independent contractors nor any tenant, has operated the best Premises for the purpose of Seller’s knowledgereceiving, the Property is not contaminated withhandling, nor threatened with contamination from outside sources by using, storing, treatment, transporting and disposing of petroleum products or any Hazardous Material as defined in said Environment Laws, other toxic dangerous or hazardous chemicals, materials, substances, pollutants and wastes, or any chemical, material or substance exposure to which exposure is prohibited, limited or regulated by any federal, state, county, regional or local authority (all the foregoing being hereinafter collectively referred to as "Hazardous Materials"); (ii) there are no existing or regional authoritiespending remedial actions or other work, repairs, construction or capital expenditures with respect to the Premises in connection with the Environmental Laws, nor has Seller received any notice of any of the same; (iii) no Hazardous Materials have been or will be released into the environment, or which have been or will be deposited, spilled, discharged, placed or disposed of at, on, the Premises, nor has Seller used the Premises as a landfill or a disposal site for Hazardous Materials or for garbage, waste or refuse of any kind; (iv) there are no locations off the Premises where Hazardous Materials generated by or on the Premises by Seller have been treated, stored, deposited or disposed of; (v) the sale of the Premises by Seller to Purchaser does not require notice to or the prior approval, consent or permission of any federal, state or local governmental agency, body, board or official; (vi) no notices of any violation of any of the matters referred to in the foregoing sections relating to the Premises or its use have been received by Seller and there are no writs, injunctions, decrees, orders or judgments outstanding, no lawsuits, claims, proceedings or investigations pending or threatened, relating to the ownership, use, maintenance or operation of the Premises, nor is known there any basis for any such lawsuit, claim, proceeding or investigation being instituted or filed. The representations and warranties set forth in this Section 6 shall be continuing and shall be true and correct on and as of the closing date with the same force and effect as if made at that time and all such representations, warranties and covenants shall survive closing for 10 years and shall not be affected by any investigation, verification or approval by any party hereto or by anyone on behalf of any party hereto and shall not merge into Seller's deed being delivered at closing. Seller agrees to pose a risk indemnify and hold Purchaser harmless from and against and to health reimburse Purchaser with respect to any and safetyall claims, demands, causes of action, loss, damage, liabilities, and the Property has never been used as a landfill, dump site, underground improvements costs (including attorney's fees and court costs) asserted against or for storage incurred by Purchaser by reason of hazardous or regulated substances.
I. All arising out of the lease information provided to Buyer pursuant to breach of any representation, warranty or covenant as set forth in this Section 15 6. Notwithstanding any provision of this Agreement to the contrary, in any of the foregoing representations and warranties, the words "to Seller's knowledge", or any variation thereof, shall mean to the actual knowledge of RODNEY YOUNG, President of Seller. Notwithstanding any provisiox xx xxxx Xxreement to the contrary, if, during the course of Purchaser's investigation of the Property, but before the Closing Date, Purchaser learns that any of Seller's representations set forth in this Section 6 are untrue, then such representation shall be deemed to conform to the fact as discovered by Purchaser. Except as otherwise set forth in this Agreement, (i) Purchaser is completepurchasing the Property in the Property's "as-is, true with all faults" condition; and accurate(ii) in determining whether or not to purchase the Property, Purchaser is relying only on its investigation of the Property and not on any representation or warranty of Seller.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
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Representations, Warranties and Covenants of Seller. A. Seller does hereby covenantrepresents and warrants to Purchaser, warrant which representations and represent warranties shall be deemed made by Seller to Buyer Purchaser also as followsof the Closing Date that:
A. (1) There are no parties rightfully in possession of any portion of the Property;
(2) Seller has is duly authorized and empowered to sell the Property;
(3) All obligations of Seller arising from the ownership and operation of the Property which accrue prior to the Closing Date, have been paid as they became due or will convey goodbe paid at or prior to Closing. Except for obligations for which provisions are herein made for proration or other adjustments at Closing, marketable, and insurable title there will be no obligations of Seller with respect to the Property free outstanding as of the Closing Date;
(4) Seller shall not enter into any new leases or service agreements unless that same is terminable without penalty by the then owner of the Property upon not more than 30 days’ notice or unless mutually agreed upon by Seller and clear Purchaser. Xxxxxxxx Farm PSA– Montgomery, IL 5 (5) As of the Closing Date there will be no recorded or unrecorded land leases affecting the Property. Notwithstanding anything contained in this Agreement to the contrary, all liensof the representations, encumbranceswarranties and certifications (the “Representations”) which are made by Seller and set forth herein or in any of the documents or instruments required to be delivered by Seller hereunder, claims shall be subject to the following conditions and chargeslimitations: (i) there shall no liability on the part of Seller for breaches of Representations of which Purchaser had actual knowledge at Closing; subject only and (ii) Purchaser shall not have the right to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements bring any lawsuit or other easements for right-of-way legal action against Seller, nor pursue any other remedies against Seller, as a result of recordthe breach of the Representation of which Purchaser had actual knowledge at the Closing, utility easements or other easements for right-of-way of recordbut Purchaser’s sole right shall be to terminate this Agreement in which event, the Xxxxxxx Money and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingall interest accrued thereon shall be returned to Purchaser.
B. There From the effective date of this Agreement until the Closing Date or earlier termination of this Agreement, Seller covenants to:
(1) to advise Purchaser promptly of any litigation, arbitration or administrative hearing before any governmental body or agency of which Seller is no litigation pendingnotified, concerning or affecting the Property which is instituted after the date hereof; and
(2) to not take, or omit to take any action that would have the effect of violating any of the material representations, warranties, covenants, and agreements of Seller contained in this Agreement;
(3) that this Agreement when executed and delivered by Purchaser and Seller will constitute the valid and binding agreement of Seller enforceable against Seller in accordance with its terms;
(4) that to Seller’s current, actual knowledge, neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated hereby will violate or be in conflict with; (i) any applicable provisions of law; (ii) any order of any court or government agency having jurisdiction over the Seller; or (iii) any agreement or instrument to which Seller is a party or which Seller is bound;
(5) that there are no actions, suits, claims or other proceedings pending or, to the best of Seller’s knowledge, investigation, condemnation contemplated or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of that could affect Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Propertyability to perform its obligations under this Contract.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
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Samples: Real Estate Purchase and Sale Agreement (Inland Land Appreciation Fund Ii Lp)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant represents and represent warrants to Buyer as follows:
A. Purchaser that at closing Seller has will have good and will convey good, marketable, and insurable marketable fee simple title to the Subject Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessmentscovenants, if anyrestrictions, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way way, easements, and any other matters affecting title to the Subject Property except for the Permitted Exceptions, and at closing, Seller will be in a position to convey the Subject Property to Purchaser free and clear of recordall liens, utility easements or other easements for rightencumbrances, covenants, restrictions, rights-of-way of recordway, easements and existing tenant leases, and other such matters affecting title except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pendingthe Permitted Exceptions. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, neither Seller nor its subsidiaries shall sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property (other than the Permitted Exceptions) without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser, to the best of Seller’s knowledge, investigationas follows:
a. There are no actions, condemnation suits, or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To proceedings pending or, to the best of Seller’s knowledge, threatened against Seller represents that there are no underground tanksor otherwise affecting any portion of the Subject Property, xxxxxat law or in equity, or before or by any federal, state, municipal, or other underground structures governmental court, department, commission, board, bureau, agency, or debris instrumentality, domestic or foreign;
b. The execution by Seller of this Contract and the consummation by Seller of the sale contemplated hereby have been duly authorized, and do not, and, at the closing date, will not, result in a breach of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or by which the Subject Property or any portion thereof is bound, and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject Property; and
c. Seller has not received any notice of any violation of any ordinance, regulation, law, or statute of any governmental agency pertaining to the Subject Property or any portion thereof. All of the foregoing representations and warranties of Seller are made by Seller both as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement hereof and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and again as of agreed that the date of closing representations and warranties set forth hereinabove shall survive the closing.
G. To closing of this Contract only for a period of six (6) months following the best of Sellers’ knowledgeclosing date, there are but not thereafter, and Seller shall have no violations liability of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect kind whatsoever for any breach thereof except to the Propertyextent a claim is asserted against Seller within such six (6) month period.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant makes the following representations and represent to Buyer as follows:
A. Seller has warranties and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date Effective Date and the Closing Date:
8.01 Seller is a limited liability company duly organized, validly existing, and in good standing in the State of this AgreementDelaware. Seller shall have has the ongoing full right and authority and has obtained any and all consents required to enter into this Contract and to consummate or cause to be consummated the transactions contemplated hereby. This Contract has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation up through of Seller, enforceable in accordance with their terms, except to the closing extent that such enforcement may be limited by applicable bankruptcy insolvency, moratorium and other principles relating to inform Buyer or limiting the rights of contracting parties generally. Seller is not a "foreign person", as defined in recent amendments to the Internal Revenue Code and, at Closing the, agrees to provide to Title Company, if applicable, an affidavit to that effect.
8.02 There are no parties in possession of any defect in portion of the improvements that occur between the effective date of this Agreement and the closing dateProperty as lessees or tenants at sufferance.
E. 8.03 To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ 's knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials active or other laws, rules, regulations, ordinances or orders with respect to unresolved liens against the Property.
H. To 8.04 Any approvals by the best City of St. Petersburg, FL and/or Pinellas County, FL are fully vested at the Property and have not expired.
8.05 Subject to the cooperation of the relevant governmental authorities, Seller will use commercially reasonable efforts to=continue with its re-platting effort and keep Purchaser informed as to the re-platting process upon request, and Seller shall complete the re-platting process prior to Closing.
8.06 Seller will timely and diligently pursue all of Seller’s 's obligations under this Contract.
8.07 With respect to the Seller, wherever the term "actual knowledge" or "knowledge" is used above, it shall refer to the actual present and conscious awareness or knowledge of Cxxxx Xxxx for the Seller, without any duty of inquiry or investigation; provided that so qualifying Seller's knowledge shall in no event give rise to any personal liability on the part of Cxxxx Xxxx and his father or any officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms "actual knowledge" or "knowledge" do not include constructive knowledge, imputed knowledge, or knowledge Seller or Cxxxx Xxxx do not have but could have obtained through further investigation or inquiry. No broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. The provisions of this Section 8.04 shall survive the Closing.
8.08 Seller shall notify Purchaser promptly if Seller becomes aware of any transaction or occurrence prior to a Closing that would make any of the representations or warranties of Seller inaccurate in any material respect. If as part of the foregoing notification, Seller agrees to take the necessary action to eliminate the material inaccuracy in any such representation or warranty on or before the date of the Closing and if Seller does so eliminate or remove such material inaccuracy, the terms and provisions of this Contract shall remain in full force and effect and Purchaser shall complete the Closing of the Property is as specified herein. All representations and warranties contained herein (as the same may need to be modified on or before the Closing Date to reflect current information) and all representations and warranties contained in any Closing Document, except where discovered and waived by Purchaser prior to Closing as aforesaid, shall survive the Closing hereunder for a period of three (3) months ("Survival Period") and shall not contaminated with, nor threatened with contamination from outside sources by be deemed to have been waived at the Closing or merged into any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided documents of conveyance or transfer to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property be delivered by Seller at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for DeedClosing.
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Representations, Warranties and Covenants of Seller. Seller does hereby covenantwarrants, warrant represents and represent to Buyer covenants with Purchaser that each of the following statements is true and correct as followsof the date of this Agreement and shall be true and correct on the date of the Closing:
A. Seller has shall have, as of the Closing, good and will convey good, marketable, and insurable marketable fee simple title to the Property free and clear of all liens, charges, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessmentsor restrictions, if any, not yet levied and certified for collection and except for all building the Permitted Encumbrances.
B. There are no leases, tenancies or other occupancy agreements in effect with respect to the Property and no individuals occupy the Property or any portion thereof.
C. Seller and Xxxxxxxxxx-Xxxxx Inc. have no actual knowledge of any current violations of zoning and/or building, inland-wetlands, environmental, zoning and planning laws, ordinances or statutes, protective covenants ordinances, orders, or requirements affecting the Property, with the exception of the 550 gallon underground diesel fuel tank located on the Property (which tank shall be brought into full compliance with all applicable laws by Seller, at its sole cost and restrictions expense, prior to Closing), nor has Seller ever received any notice concerning such noncompliance, the terms of recordwhich have not been complied with, reservation of minerals of record and utility easements no breach presently exists under any public or other easements for private covenant, condition, restriction, right-of-way or easement which affects the use and/or access to the Property or any portion thereof and Seller will promptly notify Purchaser of record, utility easements or other easements the receipt of any notice of any such violations received by Seller between the date hereof and the date set for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingthe Closing hereunder.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. D. To the best of Seller’s knowledge's knowledge and belief, Seller represents that no litigation, investigation, condemnation, eminent domain or other proceeding or taking of any kind is pending or contemplated against the Property or any portion thereof and there are is no underground tankslitigation, xxxxxeviction, proceeding or administrative proceeding pending or threatened against, or other underground structures or debris of any nature on relating to the Property.
D. The improvements E. Seller has not filed a voluntary petition in bankruptcy or has not been adjudicated a bankrupt or insolvent, or filed any petition or answer seeking any reorganization, liquidation, dissolution or similar relief under any federal bankruptcy, insolvency, or other law relating to relief for debtors, or sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator of all or any substantial part of its properties or its interests in the Property. No court of competent jurisdiction has entered an order, judgment, or decree approving a petition filed against Seller seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any federal bankruptcy act, and personal property located on no other liquidator has been appointed for Seller or used for of all or any substantial part of its properties or its interest in the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this AgreementProperty. Seller shall have the ongoing obligation up through the closing has not given notice to inform Buyer any governmental body of any defect in the improvements that occur between the effective date insolvency or pending insolvency, or suspension or pending suspension of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Propertyoperations.
F. In the event To Seller's and Xxxxxxxxxx-Xxxxx Inc.'s actual knowledge, neither Seller subsequently becomes aware nor Xxxxxxxxxx-Xxxxx Inc. has received any notice from or on behalf of a fact that any of its insurance carriers regarding any dangerous, illegal, or other condition on the representations and warranties made herein are no longer true and accurate, then Property requiring corrective action or indicating that the Seller shall promptly disclose the same to Buyer. Each insurance rates for any part of the warranties and representations contained in this Section Property will be increased, or in other Sections of this Agreement shall be deemed that such insurance carriers will not renew such existing policies, or that alterations to be made as all or any part of the date Property will be required as a condition to any such renewal or as a requirement of this Agreement and again as of avoiding any such increase in premiums, with the date of closing and shall survive exception that Xxxxxxxxxx-Xxxxx Inc. may have been advised by its insurance carrier to install a sprinkler system in the closingFarmhouse.
G. To the best of Sellers’ knowledgeSeller's knowledge and belief, there are no violations intended public improvements which would result in any special assessments being levied against the Property or any portion thereof and no special assessments are currently levied against the Property or any portion thereof, except as may be disclosed on Schedule B hereto.
H. Seller has not entered into any operation, maintenance, or service contract for the Property except those listed on Schedule F attached hereto.
I. Seller has full power and authority to enter into and perform this Agreement in accordance with its terms and this Agreement has been duly authorized and executed by Seller and is enforceable against Seller in accordance with its terms, and the documents to be delivered by Seller to Purchaser at the Closing will be duly executed by Seller and enforceable against Seller in accordance with their terms and no consent, license, approval or authorization of, or filing, registration or declaration with, or exemption or other action by any governmental or public body, authority, bureau or agency is required in connection with the execution, delivery or performance by Seller of this Agreement or the transactions herein contemplated or the Closing Documents to which Seller is a party.
J. Seller is not a foreign person within the meaning of Sections 1445 and 7701 of the Internal Revenue Code (i.e., Seller is not a nonresident alien, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations)).
K. There are no outstanding agreements to sell, options or rights of first refusal held by any third parties to purchase the Property, or any portion thereof or any interest therein, except as created under this Agreement.
L. To the best of Seller's knowledge and belief, the Seller, Xxxxxxxxxx-Xxxxxxx, Inc. and Xxxxxxxxxx-Xxxxx Inc. have each obtained all necessary permits, licenses and governmental authorizations required for the ownership and current operation of the Property and all such permits, licenses and governmental authorizations remain in full force and effect.
M. At the Closing, there will be no claim in favor of any cityperson or entity which is or could become a lien on the Property or the Improvements arising out of the furnishing of labor or materials to the Property; and there will be no unpaid assessments against the Property, countyexcept for property taxes assessed but not due and payable at the time of Closing.
N. Seller will cause all existing policies of insurance for fire and extended coverage risks, statebusiness interruption, federalrent loss and liability to be kept in full force and effect through and including the Closing of title hereunder 0. Seller, land useand to the actual knowledge of Seller, fireXxxxxxxxxx-Xxxxx Inc., healthhave not used, safetyconsented to the use of, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect and has no knowledge of the use of any portion of the Property in a manner not permitted by the Certificate of Occupancy related to the Property.
H. P. The Property abuts on and has direct vehicular access to Far Mill Crossing which is a public road.
Q. There are no leased fixtures on the Property.
R. To the best of Seller’s 's actual knowledge, the Property is not contaminated with, neither Seller nor threatened with contamination from outside sources by Xxxxxxxxxx-Xxxxx Inc. have violated any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is completecovenants, true conditions, restrictions, rights-of-way or easements that are listed as Permitted Encumbrances and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place has not violated any other debt covenants, conditions, restrictions, rights-of-way or lien on easements which affect the property other that the aforementioned Contract for Deed during this Contract for Deed.Properly,
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant makes the following representations and represent warranties to Buyer which are true as followsof the Agreement Date and as of the Closing Date:
A. (a) Seller has is a limited liability company duly authorized and existing under the laws of the State of Delaware and authorized to do business under the laws of the State of New Hampshire.
(b) This Agreement and all other documents executed by Seller which are to be delivered to Buyer at the Closing are or at the time of delivery will convey goodbe duly authorized, marketableexecuted, and insurable title delivered by Seller and are or at the time of delivery will be legal, valid, and binding obligations of Seller, and do not and at the Closing will not violate any provisions of any agreement to which Seller is a party or to which it is subject.
(c) From and after the Agreement Date, through the time of Closing, Seller shall not enter into any new contracts, leases or other agreements that would affect the Property free and clear subsequent to Closing without Buyer’s prior written consent.
(d) Xxxxxx has no knowledge of all liensany condemnation proceedings, encumbrancesor proposed litigation or proceedings, claims and charges; subject only to general real estate taxes and installments against the whole or any part of the Property.
(e) Seller is not a “foreign person”, as defined in the Internal Revenue Code.
(f) There are no attachments, executions, assignments for special assessmentsthe benefit of creditors, if any, not yet levied and certified for collection and except for all building and zoning or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements any other litigation currently existing or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived contemplated by Buyer in writing.
B. There is no litigation pendingSeller, or to the best of Seller’s actual knowledge, investigation, condemnation pending or proceeding of any kind threatened against the Seller which may have a material adverse effect upon or the Property.
C. To (g) Seller is not a “blocked person” under regulations of the best Office of SellerForeign Asset Control (the “OFAC”) of the Department of Treasury (including those named on OFAC’s knowledgeSpecial Designated and Blocked Persons list) or under any statute, executive order (including Executive Order 13224), the USA Patriot Act or any other governmental action.
(h) During the Pre-Closing Period (i.e., after the bond proceeds are wired to municipality), Seller represents that there are no underground tanks, xxxxx, at its expense shall engage EnviroVantage or other underground structures or debris another contractor selected by Seller to remove lead lining from the walls of any nature on the Property.
D. The improvements and personal property located on or portion of the Building previously used for providing imaging services (the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age “Lead Removal”). A description of the improvements Lead Removal work to be performed by Seller is attached to and incorporated as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date a part of this Agreement and as Exhibit D. Upon completion of the closing date.
E. To Seller’s knowledgeLead Removal, the walls subject to such Lead Removal will be left as studs without drywall or other wall coverings. At Closing, Seller has disclosed to Buyer all information relating shall provide executed lien waivers from the contractor on the Lead Removal, and any other documentation reasonably requested, so that title to the Property that could reasonably be expected to have a material adverse effect on the Propertyis delivered at Closing without exception for contractor’s liens.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. SCE that: As of the Approval Date, Seller has Site Control and covenants that it will convey goodmaintain Site Control for the remainder of the Term. As of the Effective Date and the Approval Date, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigationeach specification and description of each Generating Unit and the Project and the Product in Article One (and related appendices) is true and correct. Seller covenants that, condemnation or proceeding throughout the Term, Seller will promptly provide SCE with Notice of any kind threatened against change in any of the specifications or descriptions set forth in Article One (and related appendices). The Project is a New Resource. Throughout the Delivery Period: Seller which owns or has the exclusive right to the Product, and shall furnish Buyer, CAISO, CPUC and each applicable Governmental Authority with such evidence as may have a material adverse effect upon reasonably be requested to demonstrate such ownership or exclusive right. No portion of the PropertyProduct has been committed by Seller to any third party in order to satisfy RA Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets, other than pursuant to an RMR Contract between the CAISO and Seller.
C. To (i) Seller shall, and shall cause each Generating Unit’s SC to promptly (and in any event within one (1) Business Day of the best xxxx Xxxxxx or such SC receives notification from the CAISO) notify Buyer in the event the CAISO designates any portion of Sellerthe Project as CPM Capacity and (ii) in the event the CAISO makes such a designation Seller shall, and shall cause each Generating Unit’s knowledge, Seller represents that there are no underground tanks, xxxxxSC to not accept any such designation by the CAISO unless and until Buyer has agreed to accept such designation. Buyer shall have the exclusive right to offer the Product and Project, or other underground structures any portion thereof, to the CAISO as CPM Capacity. Each Generating Unit is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO. Seller shall, and each Generating Unit’s SC, owner and operator is obligated to, comply with Applicable Laws, including the Tariff, relating to the Product. Buyer shall have no liability for the failure of Seller or debris the failure of any nature Generating Unit’s SC, owner, or operator to comply with such Tariff provisions, including any penalties, charges or fines imposed on Seller or any Generating Unit’s SC, owner, or operator for such noncompliance. Seller has notified the Property.
D. The improvements SC of each Generating Unit that Seller has transferred the Product to Buyer, with respect to each day of each Showing Month, and personal property located on or used for that such SC is obligated to deliver the Property (including, but not limited to, Supply Plans in accordance with the utilities, mechanical systems, roof, foundation Tariff and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have has notified the ongoing obligation up through SC of each Generating Unit that Seller is obligated to cause each Generating Unit’s SC to provide to the closing Buyer, at least fifteen (15) Business Days before the relevant deadlines for each RA Compliance Showing, the applicable Expected Contract Quantity of such Generating Unit for each day of such Showing Month, including the amount of Flexible Capacity and Inflexible Capacity, that is to inform Buyer of any defect be submitted in the improvements that occur between the effective date of Supply Plan associated with this Agreement and for the closing date.
E. To Seller’s knowledge, applicable period. Seller has disclosed to notified each Generating Unit’s SC that Buyer all information relating is entitled to the Property that could reasonably be expected revenues set forth in Section 10.02, and such SC is obligated to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same deliver those revenues to Buyer. Each , along with appropriate documentation supporting the amount of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closingthose revenues.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has Purchaser that the following matters are true and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date execution of this Agreement and will also be true and correct as of the closing dateClosing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a limited partnership duly formed and validly existing under the laws of the State of Texas. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
E. (b) Except as set forth on Exhibit I attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller has shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Buyer all information Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Property that could reasonably be expected Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to have a material adverse effect on Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
F. In (e) Exhibit F attached hereto is a true and complete schedule of all of the event Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit F-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller subsequently becomes aware for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit G attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a fact that Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. (“TSCA”), the Occupational, Safety and Health Act, 29 U.S.C. § 651, et seq. (“OSHA”), the Clean Air Act, 42 U.S.C. § 7401, et seq. (“CAA”), the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (“FWPCA”), the Safe Drinking Water Act, 42 U.S.C. § 3001, et seq. (“SDWA”), the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, et seq. (“HMTA”) and the Emergency Planning and Community Right to Xxxx Xxx, 00 X.X.X. § 00000, et seq. (“EPCRA”), the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (“ESA”), the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq. (“FIFRA”) and other comparable federal, state or local laws, each as amended, and all rules, regulations and guidance documents promulgated pursuant thereto or published thereunder. The phrase “Hazardous Materials” shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste or other substance which is defined, determined or identified as hazardous or toxic under Environmental Laws or the Release of which is regulated under Environmental Laws. The term “Release” shall mean the discharge, disposal, deposit, injection, dumping, spilling, leaking, leaching, placing, presence, pumping, pouring, emitting, emptying, escaping, or other release of any Hazardous Material. For purposes of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained set forth in this Section or 5(h), “Hazardous Materials” shall not include consumer products, office supplies, pool chemicals and cleaning and maintenance supplies stored and used in other Sections the ordinary course of this Agreement shall be deemed to be made as operation of the date of this Agreement Property and again as of the date of closing and shall survive the closingin compliance with applicable Environmental Laws.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents and warrants to Purchaser the following, warrant which shall be true and represent to Buyer as followscorrect at the time of Closing, which are material inducements for Purchaser entering into this Agreement, and which shall survive the Closing:
A. (a) Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, is authorized to transact business and is in good standing under the laws of the State of Alabama.
(b) The execution, delivery and performance of this Agreement by Seller has been duly authorized by all requisite action on the part of Seller, and Seller shall at Closing have the full right and authority to enter into, perform and consummate its obligations under this Agreement, without any qualification, and without the necessity of any other consent.
(c) The obligations and undertakings of Seller under this Agreement do not and will convey goodnot violate or conflict with any agreement to which Seller is a party or by which Seller or the Property is bound.
(d) Without warranting the completeness, marketableconclusions or methodology of any documents produced by third parties, to the best of Seller’s knowledge, all of the information and data delivered and to be delivered to Purchaser by Seller under this Agreement are, and insurable title at Closing will be, true and correct in all material respects.
(e) Other than the Personal Property located on or in the Property on February 13, 2008 (less the Excluded Personal Property), there is no other personal property owned by Seller relating to the Property free Real Property.
(f) Seller will in accordance with Section 5 of this Agreement, provide Purchaser with true, correct and clear complete copies of all liens, encumbrances, claims Licenses and charges; subject only Permits it currently has relating to general real estate taxes the Property. Seller has no applicable Licenses or Permits other than those listed on Schedule 3(f) attached hereto. All amounts payable by Seller in connection with such Licenses and installments for special assessments, if any, not yet levied Permits have been paid through the last date due and certified for collection there is no material default existing and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived continuing thereunder by Buyer in writingSeller.
B. There (g) Attached hereto as Schedule 3(g) is a list of all Service Contracts related to the ownership, operation, leasing or use of the Property. Seller has, or will in accordance with Section 5 of this Agreement, provide Purchaser with true, correct and complete copies of the Service Contracts listed in Schedule 3(g). All amounts payable by Seller under such contracts have been paid through the last date due and there is no litigation pendingmaterial default existing and continuing thereunder by Seller, or to the best of Seller’s knowledge, investigationthe other party thereto.
(h) Except for the Purchase Option, condemnation there are no recorded or proceeding unrecorded contracts and/or options pertaining to or affecting the sale of any kind threatened against the Seller which may have a material adverse effect upon the Property, or any part thereof, among parties other than Seller and Purchaser.
C. (i) To the best of Seller’s knowledge, Seller represents that there are no underground tanks“Hazardous Materials,” as hereinafter defined, xxxxxlocated in, on, or other underground structures or debris under the Property. Seller is not a generator of any nature such Hazardous Materials and has conducted its activities on the Property.
D. The improvements and personal property located on or used for from the Property (includingin full compliance with all hazardous waste emission, but not limited toreporting, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreementremoval requirements imposed by applicable law. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, there are not now, nor has there ever been, any underground or aboveground storage tanks located at or within the Property. Seller has not used or operated the Property is not contaminated within any manner for the storage, nor threatened with contamination from outside sources by use, treatment, manufacture or disposal of any chemicalHazardous Materials, material or substance and, to which exposure is prohibitedthe best of Seller’s knowledge and belief, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used or operated for the storage, use, treatment, manufacture or disposal of any Hazardous Materials. For purposes hereof, “Hazardous Materials” shall mean any substance, material, waste, gas, or particulate matter which is regulated by any local governmental authority, the State of Alabama, or the United States Government, including, without limitation, any material or substance which is (i) defined as a landfill, dump site, underground improvements “contaminant,” “pollutant,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” or for storage “restricted hazardous waste” under any provision of Alabama law; (ii) petroleum products; (iii) asbestos; (iv) polychlorinated biphenyl; (v) radioactive material; (vi) designated as a “hazardous or regulated substances.
I. All of the lease information provided to Buyer substance” pursuant to Section 15 311 of the Clean Wxxxx Xxx, 00 X.X.X. §0000 et seq. (33 U.S.C. §1317); (vii) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation & Rxxxxxxx Xxx, 00 X.X.X. §0000 et seq (42 U.S.C. §6903); or (viii) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601).
(j) Seller is the present owner of the leasehold interest created under the Lease, and there are no parties in possession of the Property other than Seller. The IDB is the present fee simple titleholder of the Property.
(k) Seller has performed all obligations required to be performed by it and is not in default under the Lease or any indenture, mortgage, security agreement or other agreement to which Seller is or has been subject as a party with respect to the Property.
(l) Except as disclosed in Section 10 below and as set forth in Schedule 3(g), no contract or agreement of any kind including, without limitation, real estate leasing and brokerage contracts, and contracts for servicing, operating or managing the Property, will be effective and binding upon the Property or Purchaser.
(m) To the best of Seller’s knowledge, there is no threatened impairment of the sewer, water, electric and telephone services provided to the Property.
(n) To the best of Seller’s knowledge, there are no unpaid improvement liens, special assessments or library or fire dues affecting the Property, and there are no actions, suits or proceedings, governmental or otherwise, including without limitation condemnation or eminent domain proceedings, pending or threatened against or affecting the Property, or affecting Seller’s ability to perform its obligations under this Agreement, and there are no such actions, suits or proceedings pending, contemplated or threatened by Seller in connection with the Property; and from and after the date of this Agreement is completeexcept for actions to enforce the terms of this Agreement, true and accurateSeller shall not commence or allow to be commenced, on its behalf, any action, suit or proceeding with respect to the Property without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed.
J. There (o) Seller is no other debt not a “foreign person” as that term is defined in Section 1445 of the Internal Revenue Code, and Seller shall execute an affidavit to such effect in the form to be provided by Purchaser, failing which Purchaser may proceed with the withholding provisions as provided by applicable law. Seller shall indemnify Purchaser and its agents against any liability or lien on cost, including reasonable attorneys’ fees, in the property event that this representation or the affidavit provided by Seller at the time Closing is false.
(p) [Intentionally Deleted]
(q) Seller has not made a general assignment for the benefit of closing nor creditors, filed any voluntary petition in bankruptcy or, to the best of Seller’s knowledge, suffered the filing of an involuntary petition by Seller’s creditors, suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, admitted in writing its inability to pay its debts as they generally come due or made an offer of settlement, extension or composition to its creditors generally.
(r) There are no leases or other occupancy rights granted by Seller relating to or affecting the Property.
(s) Seller has not filed, and has not retained anyone to file, notices of protest against, or to commence actions to review ad valorem tax assessments against the Real Property which are currently pending. During the term of this Agreement, Seller will not settle or compromise any of foregoing without the prior written consent of Purchaser, not to be unreasonably withheld, conditioned or delayed.
(t) Seller shall keep and maintain, at its sole cost and expense, until the earlier of the Closing or the termination of this Agreement, the following insurance with respect to the Real Property (including the improvements thereon): (i) property and casualty insurance in an amount not less than the Purchase Price, and (ii) public liability insurance in a commercially reasonable amount. All policies of insurance required to be carried by Seller place hereunder shall be issued by responsible insurance companies which are licensed to do business in the State of Alabama and have a Best’s rating of at least “A”.
(u) Seller shall not remove any Personal Property other than the Excluded Property from the Real Property prior to the Closing, except for the replacement of items of at least equal value, which replacement items shall be included in this sale.
(v) From and after the date this Agreement is fully executed, Seller will:
(i) except as may be required by law, not perform any grading, excavation, construction, or remove any improvements or personal property (other than the Excluded Personal Property), or make any other debt change or lien on improvement upon or about the property Property;
(ii) not create or incur, or suffer to exist, any mortgage, lien, pledge, or other that encumbrances in any way affecting the aforementioned Contract Property other than the Permitted Exceptions;
(iii) not commit any waste or nuisance upon the Property;
(iv) not violate any laws, ordinances, regulations, and restrictions affecting the Property and its use;
(v) not execute any leases affecting the Property without the prior written approval of Purchaser;
(vi) not default under the Lease;
(vii) through Closing maintain, preserve and protect the Property in the same condition existing as of the date of this Agreement; and
(viii) promptly notify Purchaser in writing of any event or circumstance of which Seller becomes aware which materially affects Seller’s ability to timely perform its covenants, or materially affects the truth of any representation or warranty made by Seller under this Agreement.
(w) At or prior to Closing, Seller shall satisfy any and all claims for Deed during this Contract mechanics’ or materialmen’s liens against the Property or any part thereof incurred or suffered by Seller, and shall indemnify and hold harmless and protect the Purchaser from any and all loss or liability from such claims, including, without limitation, reasonable attorney’s fees and court costs.
(x) Seller shall cooperate in good faith with Purchaser in its application for Deedall permits, licenses, approvals and other authorizations, including any re-zoning (or zoning variance) and resubdivision, with regard to its purchase and proposed use of the Property.
(y) As used herein, the term “knowledge” with respect to any party shall mean the actual knowledge of such party.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Surmodics Inc)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant represents and represent warrants to Buyer as follows:
A. Purchaser that at closing Seller has will have good and will convey good, marketable, and insurable indefeasible fee simple title to the Subject Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessmentscovenants, if anyrestrictions, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way of recordway, utility easements or other easements for right-of-way of recordeasements, and existing tenant leasesany other matters affecting title to the Subject Property except for the Permitted Exceptions, and except for such other matters as are approved or waived by Buyer at closing, Seller will be in writing.
B. There is no litigation pendinga position to convey the Subject Property to Purchaser free and clear of all liens, encumbrances, covenants, Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, neither Seller nor its subsidiaries shall sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property (other than the Permitted Exceptions) without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser, to the best of Seller’s 's knowledge, investigationas follows:
a. There are no actions, condemnation suits, or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To proceedings pending or, to the best of Seller’s 's knowledge, threatened against Seller represents that there are no underground tanksor otherwise affecting any portion of the Subject Property, xxxxxat law or in equity, or before or by any federal, state, municipal, or other underground structures governmental court, department, commission, board, bureau, agency, or debris instrumentality, domestic or foreign;
b. The execution by Seller of this Contract and the consummation by Seller of the sale contemplated hereby have been duly authorized, and do not, and, at the closing date, will not, result in a breach of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or by which the Subject Property or any portion thereof is bound, and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject Property; and
c. Seller has not received any notice of any violation of any ordinance, regulation, law, or statute of any governmental agency pertaining to the Subject Property or any portion thereof. All of the foregoing representations and warranties of Seller are made by Seller both as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement hereof and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and again as of agreed that the date of closing representations and warranties set forth hereinabove shall survive the closing.
G. To closing of this Contract only for a period of two (2) years following the best of Sellers’ knowledgeclosing date, there are but not thereafter, and Seller shall have no violations liability of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect kind whatsoever for any breach thereof except to the Propertyextent a claim is asserted against Seller within such two (2) year period.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents and warrants to WFBC with respect to each account offered by Seller to WFBC hereunder that (i) Seller is the sole owner of such account, warrant and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property which account is free and clear of all any liens, encumbrancesclaims, claims equities or encumbrances whatsoever, and charges; subject upon each purchase by WFBC of such account, WFBC will own such account free and clear of any liens, claims, equities or encumbrances whatsoever and the consideration received by Seller from WFBC for such account is fair and adequate, (ii) Seller is the sole oblige under such account, and has full power and is duly authorized to sell, assign and transfer such account to WFBC hereunder, and the date of sale of such account is not more than 60 days after the date of the original invoice relating to such account, (iii) Seller has no knowledge of any fact which would lead it to expect that, at the date of sale of such account to WFBC, such account will not be paid in the full stated amount when due, (iv) such account arises out of a bona fide sale of conforming goods or the bona fide rendition of services by Seller, and all underlying goods have been delivered to the account debtor, or all underlying services have been rendered by Seller, in complete fulfillment of all of the terms and conditions of a fully executed, delivered and unexpired contract with the account debtor, and the account debtor has accepted the goods or services to which the account relates, (v) unless WFBC agrees to the contrary in writing, such account is denominated and payable only to general real estate taxes in United States dollars, (vi) such account constitutes the legal, valid and installments for special assessmentsbinding payment obligation of the account debtor, if anyenforceable in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, not yet levied and certified for collection and except for all building and zoning lawsinsolvency, ordinances or statutesreorganization, protective covenants and restrictions of recordmoratorium, reservation of minerals of record and utility easements or other easements for right-of-way similar laws affecting the enforcement of recordcreditor’s rights generally), utility easements (vii) such account is current and not past due, has not been paid by or other easements for right-of-way on behalf of recordthe account debtor in whole or in part, and existing tenant leasesis not and will not be subject to any dispute, rescission, set-off, recoupment, defense or claim by the account debtor, whether relating to price, quality, workmanship, delay in delivery, set-off, counterclaim or otherwise, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding account debtor has not and will not claim any defense of any kind threatened against or character (other than bankruptcy or insolvency arising after the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing sale of such account to inform Buyer WFBC hereunder) against payment of any defect in the improvements that occur between the effective date of this Agreement such account, and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made (viii) as of the date of this Agreement and again as purchase by WFBC of such account the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders account debtor with respect to such account is not a debtor in any bankruptcy proceedings, insolvent, undergoing composition or adjustment of debts or unable to make payment of its obligations when due. Seller further represents and warrants to WFBC that (a) the Property.
H. To execution, delivery and performance of this Agreement by Seller have been duly authorized and this Agreement constitutes the best legal, valid and binding obligation of Seller’s knowledge, the Property enforceable against Seller in accordance with its terms, (b) Seller is not contaminated witha debtor in any bankruptcy proceedings, insolvent, undergoing composition or adjustment of debts or unable to make payment of its obligations when due and no petition in bankruptcy has been filed by or against Seller or any affiliate thereof, nor threatened has Seller or any of its affiliates filed any petition seeking an arrangement of its debtors or for any other relief under the United States Bankruptcy Code (the “Bankruptcy Code”), and no application for appointment of a receiver or trustee for all or a substantial part of the property of Seller or any affiliate thereof is pending, nor has Seller or any affiliate thereof made any assignment for the benefit of creditors, (c) Seller is not in default of any debt or obligation to any lender or other creditor, and (d) Seller’s principle place of business, chief executive office, location where the records concerning its books of account and contract rights are kept, and location of any property subject to the security interest granted in Section 7 hereof, unless changed upon notice to WFBC complying with contamination from outside sources by any chemicalthe next following sentence and Section 15 of this Agreement, material is its “Address for Notices” described in Section 15 hereof, (e) Seller and each Guarantor is solvent, is able to pay its or substance to his debts as they become due, and has no outstanding liens, suits, garnishments, bankruptcies, or court actions which exposure is prohibitedcould render it or him insolvent, limited or regulated by (f) all federal, state, county, local city, and other taxes, including without limitation, income taxes, payroll taxes, real estate taxes, and sales taxes which are due and owing by Seller have been paid, and by the execution hereof, Seller certifies that all future taxes, of any kind and character, will be paid when due. Seller agrees not to change the location of its principal place of business or regional authoritieschief executive office, the location where its records concerning its books of account or contract rights are kept, or which is known the location of any property subject to pose a risk the security interest granted in Section 7 hereof, without giving at least 15 days advance written notice thereof to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesWFBC.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Account Transfer Agreement (Atsi Communications Inc/De)
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer effective the date hereof and through and as followsof Closing, that:
A. (a) Seller’s entry into this Agreement does not violate any agreement with, or rights of, any other party;
(b) Seller shall honor and timely, properly and completely fulfill every obligation imposed upon it herein;
(c) Seller holds any and all rights necessary to perform its obligations under this Agreement;
(d) Seller knows of no pending litigation adversely affecting its rights in and/or to the Assets;
(e) Seller is a California corporation duly organized, validly existing and in good standing under the laws of the State of California and is duly qualified to carry on its business in the jurisdictions where the Assets are located;
(f) Seller has the corporate power and will convey goodauthority to enter into this Agreement and perform its obligations under this Agreement and the transactions contemplated hereby. The execution, marketabledelivery and performance of this Agreement by Seller, and insurable the consummation of the transactions contemplated hereby, will not: (a) violate or conflict with any provision of the operating agreement or other organizational documents of Seller; (b) violate or conflict with any material agreement or instrument to which Seller is a party or by which Seller or any of the Assets are bound; (c) violate or conflict with any judgment, order, ruling, or decree applicable to Seller as a party in interest; (d) violate or conflict with any law, rule or regulation applicable to Seller; or (e) result in the creation or imposition of any lien, charge or other encumbrance upon the Assets that is not discharged at Closing;
(g) The execution, delivery and performance of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered on behalf of Seller, and at Closing all documents and instruments required hereunder to be executed and delivered by Seller shall have been duly executed and delivered. This Agreement does, and such documents and instruments shall, constitute legal, valid and binding obligations of Seller enforceable against Seller in accordance with their terms, subject, however, to the effect of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies 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) and the power of a court to deny enforcement of remedies generally based upon public policy;
(h) Seller has incurred no obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of the matters provided for in this Agreement;
(i) Seller has defensible title to the Property Assets. As used herein, the term “Defensible Title” shall mean such right, title and interest that, except for permitted encumbrances (as disclosed in Exhibit A): (i) entitles Seller to receive, from its record title ownership in such Assets, not less than the interests set forth in Exhibit A with respect to all of the oil, gas, and hydrocarbon minerals produced, saved and marketed from each unit or well, as the case may be, drilled on the land underlying the Assets subsequent to Closing, without reduction, suspension or termination throughout the productive life of such Assets, except as expressly noted in Exhibit A; (ii) obligates Seller to bear no more than the percentage set forth in Exhibit A as the “Working Interest” or “WI” with respect to all of the costs and expenses relating to the operations on and the maintenance and development of each unit or well, as the case may be, drilled on the land underlying the Assets subsequent to Closing, without increase throughout the productive life of such Assets, except as expressly noted in Exhibit A; and (iii) is free and clear of all material liens, encumbrancesmortgages, claims pledges, claims, charges, options, calls on production, preferential purchase rights, requirements for consent to assignment which would apply to the transactions contemplated hereby and chargesother encumbrances and title defects. As used herein, the term “Permitted Encumbrances” shall mean: (i) lessors’ royalties, overriding royalties, reversionary interests and similar burdens (including calls on production or the right of a lessor to take production in kind) affecting a leasehold interest if the net cumulative effect of such burdens does not operate to reduce the interest of Seller with respect to all oil and gas produced from any units or xxxxx below the “Net Revenue Interest” or “NRI” set forth in Exhibit A for such units or xxxxx; subject only (ii) division orders and sales contracts terminable without penalty upon no more than 30 days’ notice to general real estate taxes the Buyer of production; (iii) materialman’s, mechanic’s, repairman’s, employee’s, contractor’s, operator’s, tax, and installments other similar liens or charges arising in the ordinary course of business for special assessments, if any, obligations that are not yet levied due; and certified for collection and except for all building and zoning laws(iv) easements, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way way, servitudes, permits, surface leases and other rights of recordthird parties in respect of surface operations, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may extent same do not have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature affect on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations Assets and/or the use and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closingenjoyment thereof.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents and warrants to Buyer, warrant which representations and represent warranties will be deemed made by Seller to Buyer as followsof the Effective Date and also as of the Closing Date, that:
A. (a) Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified and in good standing in the State in which the Land is located. Seller has the right, power and authority to enter into this Contract and to sell and convey the Property as provided in this Contract without the need for further approvals. Seller has the right, power and authority to carry out Seller’s obligations hereunder and all requisite action necessary to authorize Seller to enter into this Contract and carry out Seller’s obligations hereunder have been, or on the Closing Date will convey goodhave been, marketabletaken. This Contract is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. There is no agreement to which Seller is a party or, to Seller’s current actual knowledge, that is binding on Seller which is in conflict with this Contract.
(b) To Seller’s current, actual knowledge, Seller has received no written notice of any (i) pending or threatened improvement liens, special assessments or condemnations against the Property by any governmental authority, or (ii) alleged violation of any law, statute, rule, regulation, ordinance, covenant, condition or restriction, or breach of any Approvals or the Permitted Exceptions.
(c) Seller has not been served with citation or summons in connection with or filed any action, suit, proceeding or claim presently pending in any court or before any federal, state, county or municipal department, commission, board, bureau or agency, or other governmental instrumentality or before any arbitration tribunal or panel affecting (i) the Property or any portion thereof, (ii) Seller’s title, use, operation or ownership of the Property, or (iii) Seller’s ability to perform its obligations under this Contract nor, to Seller’s current actual knowledge, is any such action, suit, proceeding or claim currently threatened. To Seller’s current actual knowledge, Seller has received no written notice from any insurance broker, agent or underwriter that any noninsurable condition exists in, on or about the Property or any part thereof. To Seller’s current, actual knowledge, the Property and the use and occupancy thereof are in compliance in all material respects with all applicable building, earthquake, zoning, land use, environmental, antipollution, health, fire, safety, access and accommodations for the physically handicapped, subdivision, energy and resource conservation and similar laws, statutes, rules, regulations and ordinances and all covenants, conditions and restrictions binding on the Property, except as otherwise set forth in the Submission Matters.
(d) Seller agrees to advise Buyer promptly of (and provide Buyer with copies of all pleadings and/or non-privileged third party correspondence relating to) (i) any litigation, arbitration, administrative hearing, proceeding or claim in any court or before any federal, state, county or municipal department, commission, board, bureau or agency, or other governmental instrumentality or before any arbitration tribunal or panel of which Seller is given written notice concerning or affecting the Property that is instituted after the Effective Date, and insurable (ii) all written notices given or received by Seller after the Effective Date asserting any breach or default under the Leases or the Service Contracts or any violation of the Approvals or Permitted Exceptions.
(e) To Seller’s current actual knowledge, the Property is not in violation of any “Environmental Laws”, meaning all federal, state and local laws, ordinances, rules and regulations now in force in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 (“RCRA”), the Toxic Substances Control Act, the Hazardous Materials Transportation Act, the Clean Water Act and all applicable laws and regulations, as such laws have been supplemented or amended, except as otherwise provided in the Submission Matters. To Seller’s current, actual knowledge, Seller has received no written notice or report indicating the presence of hazardous substances affecting the Property other than any such notice or report disclosed to Buyer as part of the Submission Matters, including the asbestos screening report included in the Submission Matters. If Seller receives any written notice that any hazardous substances may have been released or that any violation of any Environmental Laws may have occurred at the Property, Seller shall promptly deliver a copy thereof to Buyer. Additionally, Seller agrees to promptly provide to Buyer all written communications received by Seller from any person or given by Seller to any person concerning any release or threatened release of any hazardous substances in, on or under the Property (or any nearby real property which could migrate to the Property) or any violation of any Environmental Laws at the Property.
(f) During the term of this Contract, Seller will (i) operate and maintain the Property as an apartment complex in the same manner and with the same care as is Seller’s current practice (including, without limitation, maintenance of substantially the same advertising and marketing programs for the Property in effect as of the date hereof), (ii) comply with the Approvals, Permitted Exceptions, and all covenants, conditions, restrictions, laws, statutes, rules, regulations and ordinances applicable to the Property, and (iii) perform when due all of Seller’s obligations under the Leases, Service Contracts, Approvals and Permitted Exceptions in accordance with the terms thereof. Seller will not enter into any Leases or modify existing Leases except in the ordinary course of operating the Property consistent with Seller’s current leasing practices as of the date hereof, including, without limitation, current rental rates and concessions. Without Buyer’s prior written consent, Seller will not enter into any additional Service Contracts that would either be binding on Buyer or the Property after Closing or which do not include a provision allowing termination upon 30 days’ notice, without fee or penalty. Seller shall not initiate or consent to, approve or otherwise take any action to change the zoning or any other governmental rules or regulations presently applicable to all or any part of the Property.
(g) To Seller’s current, actual knowledge, Seller has not received any written notice that (i) the Property, or any portion thereof, or (ii) Seller’s use, operation or ownership of the Property is in material violation of any laws, rules, ordinances or regulations of any applicable governmental authority or body, including, any state or federal environmental law, rule or regulation, except as otherwise provided in the Submission Matters.
(h) Seller agrees to advise Buyer promptly (and provide Buyer with copies of all written notices and/or non-privileged third party correspondence relating thereto) if Seller receives written notice regarding any matter described in Subsection (g) above after the Effective Date.
(i) To Seller’s current actual knowledge, Exhibit “C” attached hereto is a materially accurate and complete list of all tangible personal property owned by Seller and located at the Land relating to the ownership, management, operation, maintenance or repair of the Property and Seller has (and can convey at Closing) good title to the Personal Property free and clear of all liens, encumbrances, security interests and adverse claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Propertyor nature whatsoever, other than liens, encumbrances and security interests that will be terminated at or prior to Closing.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and wallsj) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s current actual knowledge, Seller has disclosed to Buyer Exhibit B-1 attached hereto is an accurate and complete list of all information presently effective Service Contracts relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. (k) To the best of Seller’s current, actual knowledge, all of the Leases are described in the rent roll attached hereto as Exhibit “H”, and there are no persons leasing, using or occupying the Property is not contaminated with, nor threatened with contamination from outside sources or any part thereof except the tenants under the Leases (and as provided by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health the Service Contracts and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. Permitted Exceptions). All of the lease information provided to Buyer concerning the Leases, including without limitation set forth on the rent roll attached hereto or, as of the Closing Date, the rent roll to be provided under Section 7.(c)(9), is, to Seller’s current actual knowledge, accurate and complete in all material respects. Except as set forth on such rent roll, to the current, actual knowledge of Seller, the Leases are in full force and effect, have not been amended or modified; the full current rent is accruing thereunder; no monthly rent has been paid more than one (1) month in advance (except as otherwise expressly permitted or required pursuant to Section 15 the terms of this Agreement the Leases or as set forth in such rent roll) and no Deposit or prepaid rent has been paid except as set forth on such rent roll. To Seller’s current actual knowledge, no event has occurred or condition exists which, with or without notice or the passage of time, or both, would constitute a breach or a default by the landlord or by any tenant under the Leases except as set forth in such rent roll. To Seller’s current actual knowledge, Seller has received no written notice from any tenant under the Leases claiming any breach or default by Seller under any of the Leases. To the current actual knowledge of Seller, except as set forth on such rent roll, no concession, moving or relocation allowance or credit, or other payment or credit of any kind is completepresently owed, or will or could become due and payable, to any tenant under the Leases. Seller has (and can convey at Closing) good title to the Leases, free and clear of all liens, encumbrances, security interests and adverse claims of any kind or nature whatsoever, other than the Permitted Exceptions and liens, encumbrances and security interests that will be terminated at or prior to Closing.
(l) Seller is solvent, has not made a general assignment for the benefit of its creditors, and has not admitted in writing its inability to pay its debts as they become due, nor has Seller filed, nor does it contemplate the filing of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or any other proceeding for the relief of debts in general, nor has any such proceeding been instituted by or against Seller.
(m) All of Seller’s loans with lenders with liens affecting the Property are currently in good standing and not in default, and Seller shall cause all such lenders to reconvey or release (as applicable) such liens at Closing.
(n) Neither Seller nor, to Seller’s current actual knowledge, any previous owner of the Property has sold, transferred, conveyed, or entered into any agreement regarding water or water rights relating to the Property, except for usual and customary water utility service agreements and as otherwise expressly set forth in the Commitment.
(o) To Seller’s current actual knowledge, all of the Submission Matters provided to Buyer are, in all material respects, true and accuratecomplete copies of such documents. Seller has used commercially reasonable efforts to disclose to Buyer, in writing (which disclosure may be by delivery of the Submission Matters), all material information, knowledge and findings relating to the Property and its operations in Seller’s possession or control.
J. There (p) Seller shall (i) promptly provide to Buyer copies of any Service Contracts entered into after the date hereof and any documents or materials received by Seller from and after the date hereof that would have been included in Submission Matters if received prior to such date and (ii) within two (2) business days after Seller’s receipt of request therefor, provide to Buyer an updated rent roll with all information concerning the Leases updated through the date that is no other debt or lien on one (1) business day before the property at the time of closing nor shall Seller place any other debt or lien on the property other date that the aforementioned Contract for Deed during updated rent roll is delivered to Buyer.
(q) Between the Effective Date and the Closing Date, Seller shall not sell, convey, assign, transfer, encumber or otherwise dispose of the Property or any material part thereof or interest therein (the foregoing will not be deemed to prevent Seller from entering into Leases and other agreements in accordance with and subject to the terms of this Contract or using office supplies, cleaning supplies and other similar items in the ordinary course of business, and or from disposing of items of equipment and other Personal Property that are replaced by Seller in the ordinary course of business). Anything herein to the contrary notwithstanding, all of Seller’s representations and warranties set out above or elsewhere in this Contract are given by Seller and accepted by Buyer subject to all matters disclosed in this Contract, by the Submission Matters, by Buyer’s Due Diligence Materials and/or the Permitted Exceptions. Seller’s representations and warranties will survive the Closing for Deedtwelve months and any claim by Buyer related to any alleged misrepresentation or breach of a covenant must be asserted and the lawsuit filed within eighteen months after the Closing Date, all as provided in Section 9.(d) above.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. As of the date hereof, Seller does hereby covenantrepresents and warrants to, warrant and represent to Buyer agrees with, the Company as follows:
A. (i) Seller is the sole record, legal and beneficial owner of the Warrant. The Warrant has and will convey goodnot been exercised, marketablein whole or in part nor has the Seller transferred any of its rights under the Warrant (other than pursuant hereto). To the seller's knowledge, except as set forth herein, there are no (a) securities convertible into or exchangeable for the Warrant (other than pursuant to the exercise of the Warrant itself) or any of the Warrant Shares; (b) options, warrants or other rights to purchase or subscribe for the Warrant or any of the Warrant Shares; or (c) contracts, commitments, agreements, understandings or arrangements of any kind (contingent or otherwise) relating to the issuance, sale or transfer of the Warrant or any of the Warrant Shares.
(ii) Seller has, and insurable the Company will receive, good and marketable title to the Property Assigned Warrant, free and clear of any and all liens, encumbrancessecurity interests, claims and charges; subject only to general real estate taxes and installments for special mortgages, rights of first refusal, agreements, limitation on voting rights, restrictions, levies, claims, pledges, equities, options, contracts assessments, if anyconditional sale agreements, not yet levied charges and certified for collection and except for all building and zoning laws, ordinances other encumbrances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris interests of any nature on whatsoever, including, without limitation, voting trusts or agreements or proxies (collectively, "Liens") excluding any Liens created by the PropertyCompany.
D. (iii) Seller has the absolute and unrestricted right, power, capacity (legal or otherwise) and authority to execute and deliver this Agreement and to perform its obligations hereunder. The improvements execution and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date delivery of this Agreement and the closing dateconsummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action by Seller and no other corporate or other actions on the part of Seller are necessary to authorize, execute and deliver this Agreement or to consummate the transactions contemplated hereby. The execution, delivery and performance by Seller of this Agreement does not, and the consummation of the transactions contemplated hereby will not, (a) violate or conflict with any provision of Seller's certificate of incorporation, by-laws or any other organizational documents; (b) violate any provision of any laws of or by governmental or regulatory entity applicable to Seller or any of its properties or assets; or (c) violate, conflict with, result in a breach of or the loss of any benefit under, constitute (with due notice or lapse of time or both) a default under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by or rights or obligations under, any of the terms, conditions or provisions of any contract, note, bond, lease, loan agreement, mortgage, security agreement, indenture, deed or trust, license, agreement or instrument to which Seller or any of its affiliates is a party or by which it or any of its affiliates is bound or to which any of its or its affiliates' properties, assets or business is subject. No consents, authorizations, waivers, filings, registrations or approvals are required in connection with the execution and delivery of this Agreement by Seller, or the performance by Seller of its obligations hereunder.
E. To Seller’s knowledge, (iv) Seller has disclosed had the opportunity to Buyer (i) review the Company's latest Annual Report on Form 10-K ("Annual Report") and all periodic reports filed by the Company with the Securities and Exchange Commission since the date of the Annual Report (the "SEC Filings") and (ii) discuss the plans, operations and financial condition of the Company with its officers, and has received all information requested by Seller relating to the Property Company to enable Seller to evaluate its decision to sell the Warrant (collectively together with the SEC Filings, the "Provided Information") hereunder. It is understood and agreed that could reasonably be expected neither the Company nor Seller makes any representation or warranty to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders whatsoever with respect to the Property.
H. To business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authoritiesCompany, or which is known with respect to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All value of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurateAssigned Warrant.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Warrant Repurchase Agreement (Hudson Technologies Inc /Ny)
Representations, Warranties and Covenants of Seller. As of the date hereof, Seller does hereby covenantrepresents and warrants to, warrant and represent to Buyer agrees with, the Company as follows:
A. (i) Seller is the sole record, legal and beneficial owner of the Warrant. The Warrant has and will convey goodnot been exercised, marketablein whole or in part nor has the Seller transferred any of its rights under the Warrant (other than pursuant hereto). To the Seller's knowledge, except as set forth herein, there are no (a) securities convertible into or exchangeable for the Warrant (other than pursuant to the exercise of the Warrant itself) or any of the Warrant Shares; (b) options, warrants or other rights to purchase or subscribe for the Warrant or any of the Warrant Shares; or (c) contracts, commitments, agreements, understandings or arrangements of any kind (contingent or otherwise) relating to the issuance, sale or transfer of the Warrant or any of the Warrant Shares.
(ii) Seller has, and insurable the Company will receive, good and marketable title to the Property Assigned Warrant, free and clear of any and all liens, encumbrancessecurity interests, claims and charges; subject only to general real estate taxes and installments for special mortgages, rights of first refusal, agreements, limitation on voting rights, restrictions, levies, claims, pledges, equities, options, contracts assessments, if anyconditional sale agreements, not yet levied charges and certified for collection and except for all building and zoning laws, ordinances other encumbrances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris interests of any nature on whatsoever, including, without limitation, voting trusts or agreements or proxies (collectively, "Liens") excluding any Liens created by the PropertyCompany.
D. (iii) Seller has the absolute and unrestricted right, power, capacity (legal or otherwise) and authority to execute and deliver this Agreement and to perform its obligations hereunder. The improvements execution and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date delivery of this Agreement and the closing dateconsummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action by Seller and no other corporate or other actions on the part of Seller are necessary to authorize, execute and deliver this Agreement or to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement does not, and the consummation by Seller of the transactions contemplated hereby will not, (a) violate or conflict with any provision of Seller's certificate of incorporation, by-laws or any other organizational documents; (b) violate any provision of any laws of or by governmental or regulatory entity applicable to Seller or any of its properties or assets; or (c) violate, conflict with, result in a breach of or the loss of any benefit under, constitute (with due notice or lapse of time or both) a default under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by or rights or obligations under, any of the terms, conditions or provisions of any contract, note, bond, lease, loan agreement, mortgage, security agreement, indenture, deed or trust, license, agreement or instrument to which Seller or any of its affiliates is a party or by which it or any of its affiliates is bound or to which any of its or its affiliates' properties, assets or business is subject. No consents, authorizations, waivers, filings, registrations or approvals are required in connection with the execution and delivery of this Agreement by Seller, or the performance by Seller of its obligations hereunder.
E. To Seller’s knowledge, (iv) Seller has disclosed had the opportunity to Buyer (i) review the Company's latest Annual Report on Form 10-K ("Annual Report") and all periodic reports filed by the Company with the Securities and Exchange Commission since the date of the Annual Report (the "SEC Filings") and (ii) discuss the plans, operations and financial condition of the Company with its officers, and has received all information requested by Seller relating to the Property Company to enable Seller to evaluate its decision to sell the Warrant (collectively together with the SEC Filings, the "Provided Information") hereunder. It is understood and agreed that could reasonably be expected neither the Company nor Seller makes any representation or warranty to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders whatsoever with respect to the Property.
H. To business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authoritiesCompany, or which is known with respect to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All value of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurateAssigned Warrant.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Warrant Repurchase Agreement (Hudson Technologies Inc /Ny)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant makes the following representations and represent to Buyer as follows:
A. Seller has warranties and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date Effective Date and the Closing Date:
8.01 Seller is a limited liability company duly organized, validly existing, and in good standing in the State of this AgreementDelaware. Seller shall have has the ongoing full right and authority and has obtained any and all consents required to enter into this Contract and to consummate or cause to be consummated the transactions contemplated hereby. This Contract has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation up through of Seller, enforceable in accordance with their terms, except to the closing extent that such enforcement may be limited by applicable bankruptcy insolvency, moratorium and other principles relating to inform Buyer or limiting the rights of contracting patties generally.
8.02 Seller is not a "foreign person", as defined in recent amendments to the Internal Revenue Code and, at Closing the, agrees to provide to Title Company, if applicable, an affidavit to that effect.
8.03 There are no parties in possession of any defect in portion of the improvements that occur between the effective date of this Agreement and the closing dateProperty as lessees or tenants at sufferance.
E. 8.04 To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ 's knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials active or other laws, rules, regulations, ordinances or orders with respect to unresolved liens against the Property.
H. To 8.05 Any approvals by the best City of St. Petersburg, FL and/or Pinellas County, FL are fully vested at the Property and have not expired.
8.06 Subject to the cooperation of the relevant governmental authorities, Seller will use commercially reasonable efforts to continue with its re-platting effort and keep Purchaser informed as to the re-platting process upon request, and Seller shall complete the re-platting process prior to Closing.
8.07 Seller will timely and diligently pursue all of Seller’s 's obligations under this Contract.
8.08 With respect to the Seller, wherever the term "actual knowledge" or "knowledge" is used above, it shall refer to the actual present and conscious awareness or knowledge of Cxxxx Xxxx for the Seller, without any duty of inquiry or investigation; provided that so qualifying Seller's knowledge shall in no event give rise to any personal liability on the part of Cxxxx Xxxx and his father or any officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms "actual knowledge" or "knowledge" do not include constructive knowledge, imputed knowledge, or knowledge Seller or Cxxxx Xxxx do not have but could have obtained through further investigation or inquiry. No broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. The provisions of this Section 8.04 shall survive the Closing.
8.09 Seller shall notify Purchaser promptly if Seller becomes aware of any transaction or occurrence prior to a Closing that would make any of the representations or warranties of Seller inaccurate in any material respect. If as part of the foregoing notification, Seller agrees to take the necessary action to eliminate the material inaccuracy in any such representation or warranty on or before the date of the Closing and if Seller does so eliminate or remove such material inaccuracy, the terms and provisions of this Contract shall remain in full force and effect and Purchaser shall complete the Closing of the Property is as specified herein. All representations and warranties contained herein (as the same may need to be modified on or before the Closing Date to reflect current information) and all representations and warranties contained in any Closing Document, except where discovered and waived by Purchaser prior to Closing as aforesaid, shall survive the Closing hereunder for a period of three (3) months ("Survival Period") and shall not contaminated with, nor threatened with contamination from outside sources by be deemed to have been waived at the Closing or merged into any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided documents of conveyance or transfer. to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property be delivered by Seller at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for DeedClosing.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant--------------------------------------------------- represents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has that the following matters are true and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date execution of this Agreement and will also be true and correct as of the closing dateClose of Escrow:
(a) Seller is a limited liability company duly formed, validly existing and in good standing under the laws of the State of California.
E. To Seller’s knowledge, (b) This Agreement and all the documents and items to be executed and delivered by Seller has disclosed to Buyer all information relating pursuant to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections terms of this Agreement shall Agreement, (i) have been or will be deemed to duly authorized, executed and delivered by Seller, (ii) are or will be made legal, valid and binding obligations of Seller as of the date of this Agreement their respective executions, (iii) are or will be enforceable in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and again as other principles relating to or limiting the rights of contracting parties generally), and (iv) do not and will not, at the date Close of closing and shall survive the closingEscrow, violate any provisions of any agreement to which Seller is a party.
G. (c) To Seller's actual knowledge, and except as otherwise disclosed to Buyer in writing, Seller has not received from any third party (including any federal, state or municipal governmental agency or authority) written request for information, written notices of claim, demand letters, or other written notification that it is or may be potentially responsible with respect to any investigation or clean-up of hazardous substances (including asbestos) released at the best Property.
(d) To Seller's actual knowledge, and except as otherwise disclosed to Buyer in writing, no condemnation, eminent domain, zoning or other land- use regulation proceeding or any other actions, suits or proceedings are pending or threatened against the Property, nor has Seller any knowledge of Sellers’ any assessments affecting the Property other than as set forth in the PTR.
(e) To Seller's actual knowledge, and except as otherwise disclosed to Buyer in writing, there are no violations of any citycovenants, countyconditions or restrictions applicable to the Property, state, federal, land use, fire, health, safety, environmental, hazardous materials and Seller has received no written notice or other laws, rules, regulations, ordinances or orders complaint with respect to the Propertyany such violation or alleged violation.
H. (f) To the best of Seller’s 's actual knowledge, and except as disclosed to Buyer in writing, there are no leases or tenancy agreements affecting the Property is not contaminated with, nor threatened with contamination from outside sources by or any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesportion thereof.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does Each Seller, jointly and severally, hereby covenantmakes the following representations, warrant and represent warrants and covenants to Buyer as followsand with Purchaser, which representations, warranties and covenants are material, are being relied upon by Purchaser (notwithstanding any independent inspections or inquiries of Purchaser or Purchaser’s representatives) and shall continue to be true at the time of Closing:
A. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of Seller has shall be duly authorized to sign the same on Seller’s behalf and will convey good, marketable, to bind Seller thereto and insurable title all documents to the Property free be executed pursuant hereto by Seller are and clear of all liens, encumbrances, claims shall be binding upon and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer enforceable against Seller in writingaccordance with their respective terms.
B. There is no litigation pendingpending or, or to the best of Seller’s knowledge, investigationthreatened, condemnation litigation, governmental investigation or like proceeding before any court, tribunal, or other governmental agency respecting the Property or the operation of the Property by Seller, nor has Seller received notice of any kind threatened against the Seller which may have a material adverse effect upon special assessment proceedings affecting the Property. Seller shall notify Purchaser promptly of any such proceedings of which Seller becomes aware.
C. To the best of Seller has not received any written notice nor, to Seller’s knowledgeknowledge (as defined below), Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris is it aware of any nature on pending action, to take by eminent domain or by deed in lieu thereof all or any portion of the Property.
D. The improvements and personal property located Purchaser acknowledges that prior to the Effective Date, Seller has delivered to Purchaser an electronic version of reports listed on or used for the Property Exhibit D attached hereto (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement“Seller’s Environmental Reports”). Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller except as may be disclosed in Seller’s Environmental Reports (including the addenda thereto), (i) there are no “Hazardous Materials”, other than in connection with building maintenance activities and building maintenance substances, and materials used in the ordinary course of the Tenant’s business operations in compliance with applicable “Environmental Laws” as defined in this Article 5D, located on, in, or under the Property; (ii) there has disclosed to Buyer all information relating to not been a “Release”, as defined below in this paragraph D, of any Hazardous Material in, on or under the Property; (iii) the Property that could reasonably be expected to have a material adverse effect has not been used for the use, storage, generation, manufacture, treatment, transportation, handling or disposal of any Hazardous Material, other than in connection with building maintenance activities and building maintenance substances and materials used in the ordinary course of the Tenant’s business operations in compliance with applicable “Environmental Laws” (as defined in this Article 5D); (iv) there are no underground storage tanks or solid waste disposal areas (as defined in C.G.S. § 22a-207(6), as amended) on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations ; and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, (v) the Property is in compliance with all Environmental Laws, including but not contaminated withlimited to any and all applicable compliance or permitting obligations. The term “Hazardous Materials” shall mean and refer to the following: petroleum products and fractions thereof, nor threatened with contamination from outside sources by asbestos, asbestos containing materials, urea formaldehyde, polychlorinated biphenyls, radioactive materials, and all other dangerous, toxic or hazardous pollutants, contaminants, chemicals, materials, substances and wastes listed or identified in, regulated by, and/or arising out of any chemical, material or substance Environmental Law. The term “Environmental Laws” shall mean and refer to which exposure is prohibited, limited or regulated by the following: all federal, state, county, local or regional authorities, or which is known to pose a risk to health and safetymunicipal, and local statutes, laws, ordinances and regulations which relate to or deal with human health or the Property has never been used environment (as a landfillall may be amended from time to time), dump siteincluding but not limited to the Connecticut Transfer Act, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.Conn. Gen.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Superconductor Corp /De/)
Representations, Warranties and Covenants of Seller. The Seller does hereby covenantrepresents, warrant warrants, and represent covenants to Buyer and with the County as follows:
A. Seller has a. To the best of Seller’s knowledge and belief, except for those matters that will convey goodbe discharged at closing, marketablethe Seller, and insurable only the Seller, holds fee simple title to the Property free and clear neither the Seller nor any other party has a common law or statutory way of necessity over or across the Property pursuant to §704.01, Florida Statutes.
b. From and after the Effective Date, Seller shall not enter into any contracts, agreements, encumbrances, liens, or other documents or instruments for or regarding the sale, transfer, disposition, assignment, conveyance, encumbrance, lien, pledge, of any Property, or any part thereof or any interest therein, or which may result in any lien or encumbrance with regard to the Property, or any part thereof, or an interest therein, without the prior written consent of the County.
c. The person executing this Contract on behalf of the Seller is fully and duly authorized to do so by Seller, and any and all actions required to make this Contract and the performance thereof legally binding obligations of Seller, have been duly and legally taken. No further consent, authorization or approval of any person or entity is required for Seller to enter into or perform this transaction.
d. Seller has paid (or covenants that it will pay prior to Closing) any and all taxes (excluding taxes not yet due) which have or could become a lien or charge against the Property, subject to the proration therein provided.
e. To the best of Seller’s knowledge and belief, except for the liens, encumbrances, claims or charges against the Property specifically disclosed in this Contract, there are no other liens, encumbrances, unpaid bills to vendors, outstanding obligations or charges (contingent or absolute) in existence against such Seller or any businesses conducted thereon, or any existing undisclosed or unrecorded liens, encumbrances or charges, which could adversely affect title to the Property after the Effective Date or the Closing Date, and charges; subject only Seller has no knowledge of any matters pending that could result in a lien against the Property, or in any way substantially adversely affect title to general real estate taxes the Property.
f. From and installments after the Effective Date Seller will not cause, permit, suffer, or allow any change, modification or alternation to be made to the Property, or any part or portion thereof, or its physical condition without the prior written consent of County.
g. There are no leases of the Property, or any portion thereof.
h. Seller represents that during its ownership the Property has never been used for special assessmentsthe dumping, if anydisposal, not yet levied manufacture, handling, transportation, storage, or usage of any toxic or hazardous wastes or materials, and certified for collection no such toxic or hazardous waste or materials are present on, in, or under the Property. As used herein “hazardous or toxic wastes or materials” shall mean and except for refer to any substance or matter giving rise to liability or regulations under any federal, state, or local law, statute, regulation, rule or ordinance.
i. To the best of the Seller’s actual information and belief, no party has ever used the Property as a dump, landfill or garbage disposal site.
j. To the best of the Seller’s actual information and belief, the Property presently complies with all building and zoning applicable environmental laws, ordinances rules and regulations.
k. The Seller is unaware of any previous violations of applicable environmental laws, rules and regulations regarding the Property.
l. The Seller has not received notice from any government agency that the Property violates any federal, state or statuteslocal laws, protective covenants ordinances, codes, rules, orders or regulations or that any remedial action is required on the Property.
m. The Seller is not aware that there are any endangered species (as defined by state or federal law) on the Property.
n. The Seller is not a “foreign person” as that term is defined in 26 U.S.C.A. §1445(f)(3), nor is the sale of the Property subject to any withholding requirements imposed by the Internal Revenue Code, including but not limited to 26 U.S.C.A. §1445.
o. Upon closing, sole and restrictions exclusive possession of recordthe Property shall transfer to the County.
p. Except for the matters concerning the Settlement Agreement, reservation there are no actions, suits or proceedings of minerals any kind or nature whatsoever legal or equitable, actual or threatened, affecting the Property, or any portion thereof, or relating to or arising out of record and utility easements the ownership of the Property, in any court or before or by any Federal, state, county or municipal department, commission, board, bureau, or agency or other easements for right-of-way of recordgovernment instrumentality.
q. No person, utility easements firm or other easements for right-of-way of recordlegal entity other than the County has any right or option whatsoever to acquire the Property or any portion thereof, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writingany interest therein.
B. There r. The execution and delivery of this Contract and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or to which Seller may be subject although not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
s. Except as stated in Paragraph 5 above, no litigation pendingrepresentation, warranty or covenant in this Contract, nor any document, certificate or exhibit given or delivered to County pursuant to this Contract, when read singularly or together as a whole, contains any untrue statement of a material fact, or omits a material fact necessary to make the statements contained therein true in the light of the circumstances under which they were made, to the best of Seller’s knowledge.
t. Seller is not subject to any bankruptcy proceeding, investigationassignment for benefit of creditors, condemnation receivership or proceeding similar proceedings and that the conveyance of any kind threatened against the Property as set out herein will not result in the Seller which may have a material adverse effect upon the Propertybecoming bankrupt or insolvent.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Contract to Purchase Real Property
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents and warrants to Purchaser that as of the date of this Agreement, warrant and represent Seller covenants to Buyer Purchaser that as followsof the Closing Date:
A. 8.1. Seller has is and will convey good, marketable, and insurable be the owner of fee simple title to the Property free and clear of all liensProperty, encumbrances, claims and charges; subject only to those matters noted in the Title Commitment and such other defects, liens or encumbrances as Purchaser may elect to waive under the provisions of paragraph 6 above.
8.2. The Lease is the only lease affecting the Property, and no third party other than Seller has any right to possession of all or any portion of the Property.
8.3. Neither Seller nor any of its agents has received any written notices from any municipal, county, state or other governmental authority of any environmental, zoning, building, tenants’ rights, fire, health code or any other violation(s) of any statutes, laws, codes, ordinances, rules or regulations with respect to the Property which will not have been corrected by Seller prior to the Closing Date. Seller shall promptly (i) comply with any such written notices received after the date of this Agreement and prior to the Closing Date, and (ii) deliver copies of any such written notices to Purchaser.
8.4. There are and will be no liens, claims or unpaid taxes against Seller and/or applicable to the Property for federal withholding taxes or state sales, retailer occupation or unemployment taxes, or any other taxes or charges whatsoever, except general real estate taxes and installments for special assessments, if any, which are not yet levied due and certified payable.
8.5. There are and will be no recorded or unrecorded mechanics’ or materialmens’ liens or any claims for collection such liens affecting the Property, and except as of the Closing Date, there will be no work or materials performed or furnished affecting the Property for all building which payment will not have previously been made. Seller will furnish Purchaser with an affidavit to this effect on the Closing Date.
8.6. There are and zoning lawswill be no contracts, ordinances agreements, leases, licenses, invoices, bills or statutesunderstandings of any nature, protective covenants and restrictions written or oral, formal or informal, other than those delivered to Purchaser under paragraph 10 below, which Purchaser, as the prospective owner of recordthe Property, reservation will be required to assume or pay, or to which Purchaser may, as a consequence of minerals of record and utility easements entering into this Agreement or purchasing the Property, become bound without Purchaser’s express prior written consent.
8.7. There are no condemnation or judicial proceedings, administrative actions or examinations, claims, litigation or other easements for right-of-way proceedings of recordany type which have been instituted or are pending or which, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind are threatened against the Seller which may have a material adverse effect upon all or any portion of the Property.
C. To the best of , or which affect Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements ability to enter into and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of fulfill its obligations under this Agreement. No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending, or, to Seller’s actual knowledge, threatened against Seller, nor are any of such proceedings contemplated by Seller.
8.8. Neither Seller nor any of its agents has received any written notice from any insurance company of any defects or inadequacies in the Improvements which might adversely affect the insurability of the Improvements. Seller shall have promptly comply with any written notice received after the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing datepromptly deliver copies of any such notices to Purchaser.
E. 8.9. Seller has not received any written notice alleging that it is in default under any of the documents, recorded or unrecorded, referred to in the Title Commitment, nor has Seller received any notice alleging that Seller has failed to timely perform all of the obligations required to be performed by it, nor alleging that Seller is otherwise in default under any contracts relating to the management, leasing, operation, maintenance or repair of the Property.
8.10. Seller shall maintain or cause the Property to be maintained in its current condition and repair, normal wear and tear excepted, and shall cause the Property to be operated in the normal course of business and in compliance with the terms of this Agreement until the Closing Date. After the Closing Date, Seller shall maintain or cause the Improvements to be maintained in their current condition and repair, normal wear and tear excepted, until the date Seller terminates the Lease and surrenders possession of the Milwaukee Parcel to Purchaser.
8.11. The Lease and all of the records, agreements, licenses, permits, operating statements and other documents and materials required to be delivered to Purchaser pursuant to paragraph 10 below shall be true, correct and complete and in such form as required under said paragraph 10.
8.12. Seller has received no written notice stating that access to the Property from any adjoining public streets would be terminated, or which stated that there would be a discontinuation of adequate sewer, water, gas, electric, telephone or other utility services.
8.13. Seller has received no written notice stating that, (i) the Property and the Personalty, including but not limited to the exterior walls and structural components of the Improvements, and the heating, air conditioning, plumbing, ventilating, utility, sprinkler and other mechanical and electrical systems, apparatus and appliances located on or about the Improvements are affected by material defects and are not in operating condition; (ii) the Improvements are not free from infestation by termites or other pests, insects or animals; and (iii) the roof is not free from leakage or other impairments.
8.14. Seller has received no written notice of any threatened any special taxes or assessments with respect to the Property other than general real estate taxes not yet due and payable. Seller has no knowledge of and neither Seller nor any of its agents has received any notice of any proposed increase in the assessed valuation of the Property for real estate tax purposes.
8.15. Seller has no obligations or responsibilities whatsoever for any period of time prior to the Closing Date to any persons or entities involved in the operation, maintenance and management of the Property which have not been satisfied, and Seller shall defend, indemnify and hold Purchaser harmless from and against any and all such obligations to such persons which arose before the Closing Date. Furthermore, there are no unfunded vested benefits or any withdrawal liability as determined under the applicable sections of the Employee Retirement Security Act of 1974, as amended, or the Internal Revenue Code of 1986, as amended, attributable to Seller for which Purchaser may have any responsibility as a result of the transaction contemplated by this Agreement.
8.16. Seller has the full power to execute, deliver and carry out the terms and provisions of this Agreement and all other agreements, instruments and documents herein required to be made or delivered by Seller pursuant hereto. Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement and such other agreements, instruments and documents, to enter into this Agreement and to consummate the sale and make the transfer and assignments contemplated by this Agreement. The sale, conveyance or assignment of the Property contemplated under this Agreement does not require the consent of any party which has not been obtained by Seller. The individuals executing this Agreement and all other agreements, instruments and documents herein required to be made or delivered by Seller on behalf of Seller are and shall be duly authorized to sign the same on Seller’s behalf and to bind Seller thereto.
8.17. The execution and delivery of this Agreement, and the consummation of the transactions contemplated by this Agreement, are not prohibited by and will not conflict with, constitute grounds for termination of, or result in the breach of any contracts, agreements or instruments to which Seller is now a party or by which Seller is bound, nor any order, rule or regulation of any court or other governmental agency or official.
8.18. To Seller’s knowledge, except as provided in that certain Phase I Environmental Site Assessement dated July 26, 2002 prepared by Laicon, Inc. pertaining to the Property, Seller has disclosed to Buyer not received any written notification from any governmental authority that (i) all information relating to or any portion of the Property that could reasonably be expected to have a material adverse and/or the Improvements violates any federal, state and/or local environmental laws rules, statutes, directives, binding written interpretations, binding written policies, ordinances and regulations issued by any governmental authority and in effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect applicable to the Property.
H. Property (“Environmental Laws”); or (ii) any “Hazardous Substances” (as defined under any Environmental Laws) have been stored or generated at, released or discharged from or are present upon the Property and/or the Improvements, except in the ordinary course of business and in accordance with all Environmental Laws. To the best of Seller’s knowledge, no Hazardous Substances are now located on the Property is not contaminated withand neither Seller nor, nor threatened with contamination from outside sources by to Seller’s knowledge, any chemicalother person has ever caused or permitted any Hazardous Substances to be placed, material held, located or substance to which exposure is prohibiteddisposed of on, limited under or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and at the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All any part of the lease information provided to Buyer pursuant to Section 15 Property in violation of any Environmental Laws. If, after the date of this Agreement is completeand prior to the Closing Date, true Seller should gain such knowledge or such facts should occur which would constitute a breach by Seller of any of the representations, warranties and/or covenants contained in this paragraph 8, Seller shall so notify Purchaser prior to the Closing Date and accurate.
J. There is no other debt either (i) Purchaser may waive such breach, or lien on (ii) if in Purchaser’s good faith determination Purchaser’s intended use and/or development of the property at Property would be materially adversely affected or Purchaser would incur a material economic loss or damage, then Purchaser may elect to terminate this Agreement by delivering written notice thereof to Seller and promptly receive a return of the time Xxxxxxx Money and all interest accrued thereon. Seller shall defend, indemnify and hold Purchaser, its members, managers, agents and employees harmless from and against any and all damage resulting from the breach of closing nor any of the representations, warranties and/or covenants contained in this Agreement. In the event of any alleged breach of any such representations, warranties or covenants, Purchaser shall deliver written notice of such breach to Seller, and Seller place shall have ten (10) days to cure such breach or deny to Purchaser in writing the existence of such breach. Purchaser shall be entitled to offset the amount of any damage suffered as a result of such breach which has not been contested by Seller as set forth above or which has been adjudicated by a court of competent jurisdiction against any amounts otherwise due from Purchaser to Seller, whether due under the terms of paragraph 3 above or under any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deedagreement between Seller and Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midwest Banc Holdings Inc)
Representations, Warranties and Covenants of Seller. Section 5.1 Seller does hereby covenantrepresents and warrants to Purchaser that as of the Effective Date and also as of the Closing Date, warrant the following statements are and represent to Buyer as followswill be true and correct:
A. (a) The Assumed Loan Documents are in full force and effect, and Seller has and will convey goodnot received written notice from Lender, marketablenor does it otherwise have knowledge of, any default or event of default thereunder.
(b) There are no parties in possession of, and insurable title no person has any right to the use or possession of, or to occupy, any portion of the Real Property free and clear of all liensor Improvements as lessees or tenants at sufferance or otherwise, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning lawstenants under the Tenant Leases, ordinances or statutesand, protective covenants and restrictions of recordexcept for such tenants, reservation of minerals of record and utility no person has any right to enter onto the Real Property except for those who, pursuant to easements or other easements Permitted Exceptions or the Miscellaneous Agreements have the right to enter onto the Real Property solely for right-of-way purposes of record, utility easements providing or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or servicing utilities to the best of Seller’s knowledge, investigation, condemnation property or proceeding of any kind threatened against providing laundry services or facilities at the Seller which may have a material adverse effect upon the Real Property.
C. To (c) Except as disclosed on Schedule 5.1(c) hereof, Seller has not received notice of, and Seller has no actual knowledge of any pending or threatened condemnation, eminent domain, or similar proceeding, or any special or other assessment affecting the best Real Property or Improvements or any part thereof.
(d) Seller is duly authorized and empowered to sell the Property. Seller has obtained all necessary approvals required under its organizational or operational documents for entering into this Agreement and for the consummation of this transaction. This Agreement has been duly authorized by all necessary and appropriate action of Seller’s knowledge, has been executed on Seller's behalf by its duly authorized representative, and is a legal, valid and binding obligation of Seller.
(e) Except as disclosed on Schedule 5.1(e) hereof, Seller represents that there are has not received notice of, and Seller has no underground tanksactual knowledge of, xxxxxany pending or threatened claims or lawsuits which could, if decided adversely to Seller or other underground structures Purchaser or debris of otherwise, materially affect the Real Property or Improvements or any nature part thereof or the use or value thereof or which could become a lien on the Propertyany thereof.
D. The improvements (f) All obligations of Seller arising from the ownership and personal property located on or used for operation of the Property (Real Property, including, but not limited to, salaries and the utilitieslike, mechanical systemshave been paid as they became due or will be paid at or prior to Closing. Except for obligations for which provisions are made herein for assumption by Purchaser or with respect to which a proration adjustment is made in Purchaser's favor at Closing, roofthere will be no obligations of Seller with respect to, foundation relating to or affecting the Real Property or any part thereof outstanding as of Closing which could give rise to a lien on or claim against or affecting the Real Property or any part thereof.
(g) Seller has not received notice of, and walls) are in good working order and in reasonable condition Seller has no actual knowledge of, any attachments, executions, assignments for the age benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any other debtor relief laws contemplated by or pending or threatened against Seller or the Real Property or any part thereof.
(h) The matters set out in the rent roll attached hereto as Exhibit I are true and correct and are not misleading. The rent roll identifies all deposits made by, or credit for which is owed to, any tenant under any Tenant Lease except to the extent (if any) expressly stated on the rent roll. Each Tenant Lease identified or referred to therein is in full force and effect. Except as disclosed on Schedule 5.1(h) hereof, Seller has not received any notice from any tenant alleging a default by Seller or the landlord, and Seller has no actual knowledge of any default by or unperformed obligation of the improvements as landlord, under any of the effective date Tenant Leases, and, to the best of this AgreementSeller's knowledge, no tenant under any of the Tenant Leases is in default thereunder.
(i) Seller is the fee simple owner of the Real Property and the Improvements, subject to no restrictions, covenants, conditions, liens, claims, encumbrances, reservations, easements or other exceptions to title other than the Permitted Exceptions.
(j) Except as disclosed in Schedule 5.1(j) hereof Seller has not received written notice of, and has no actual knowledge of, any existing condition with respect to the Real Property or Improvements (or any part thereof) or its operation which violates any law, ordinance, code, regulation or court or administrative order.
(k) Except as disclosed in Schedule 5.1(k) hereof, Seller has not received written notice, and Seller has no actual knowledge that the Real Property or the Improvements or any part thereof is being used for the storage or disposal of any hazardous or toxic materials or that any such materials are present on, under or in, or were released or discharged from, the Real Property or the Improvements in violation of applicable laws. To Seller's actual 6 knowledge, no hazardous or toxic materials now are or ever were placed or situated on, under or in, or were released or discharged from, the Real Property or the Improvements.
(l) No portion of the Real Property or the Improvements constitutes "plan assets" of any "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, or any "plan" as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended.
(m) The data and information contained in each of the financial statements and operating reports relating to the Real Property and Improvements (or any part or parts thereof) hereto furnished by Seller to Purchaser are true and correct and are not misleading and do not omit any material information. Seller shall have the ongoing obligation up through the closing to inform Buyer of promptly advise Purchaser in writing if any defect representation or warranty contained in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating Section 5.1 becomes false or misleading prior to the Property Closing; provided, however, that could reasonably be expected the delivery of such notification shall not waive, limit, diminish or affect the right of Purchaser to have object thereto (or except as expressly provided in this grammatical paragraph) any right or remedy of Purchaser relating thereto. As a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of condition precedent to Purchaser's obligations hereunder, the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section 5.1 shall be true and correct on the Closing Date. However, in the event of a breach hereof by Seller or in other Sections the event Seller has given Purchaser written notice of this Agreement shall be deemed to be a material change in any matter made as the subject of the date of foregoing representations and warranties, Purchaser's sole and exclusive remedy prior to Closing will be to (i) waive the default by Seller and close the transaction contemplated hereby, without any reduction in the Purchase Price, or (b) terminate this Agreement and again as Agreement. To the extent Purchaser has received written notice from Seller at or prior to Closing, that any one or more of the date foregoing representations and warranties are not true and correct (the "Waived Representation(s)"), and Purchaser consummates the transaction contemplated hereby, Purchaser waives any claims against Seller for a breach of closing a Waived Representation. Purchaser's right to bring a claim against Seller for breach of any representations and warranties contained herein shall survive until one (1) year after the closingClosing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Camden Property Trust)
Representations, Warranties and Covenants of Seller. For purposes of this Section 6, the term “Seller” means, as applicable, Xxx, 000 Xxxxxxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000, Xxxxxxx Wind I, Georgia Wind II, Georgia Wind III, Riverside, Overlook, Deer Point, Park Point, Park Point Land or Plume Street, the term “Property” means, as applicable, the portion of the Property owned by a particular Seller does hereby covenantand the term “Service Contracts” means those Service Contracts to which a particular Seller is a party. Based upon the foregoing, warrant Seller represents and represent to Buyer warrants to, and covenants with, Purchaser as follows:
A. (a) Seller has the right, power and will convey good, marketableauthority to enter into this Agreement, and insurable title the right, power and authority to convey the Property free in accordance with the terms and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date conditions of this Agreement. The execution and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Seller shall have on the ongoing obligation up through Closing Date and the closing to inform Buyer performance by Seller of any defect in the improvements that occur between the effective date of Seller’s duties and obligations under this Agreement and of all other acts necessary for the closing datefull consummation of the purchase and sale of the Property as contemplated herein, are not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Seller is a party, or any judicial order or judgment of any nature by which Seller is bound.
E. To Seller(b) Attached to this Agreement as: Exhibit 8B is a true and complete list of all Leases in effect as of the date hereof with respect to the Xxxxxxxx One Property; Exhibit 8B-1 is a true and complete list of all Leases in effect as of the date hereof with respect to the Xxxxxxxx Two Property; Exhibit 8B-2 is a true and complete list of all Leases in effect as of the date hereof with respect to the Southwood One Property; Exhibit 8B-3 is a true and complete list of all Leases in effect as of the date hereof with respect to the 280 Interstate North Property; Exhibit 8B-4 is a true and complete list of all Leases in effect as of the date hereof with respect to the Southhall Center Property; Exhibit 8B-5 is a true and complete list of all Leases in effect as of the date hereof with respect to the Millenia Park One/Legacy Point Property; Exhibit 8B-6 is a true and complete list of all Leases in effect as of the date hereof with respect to the 0000 Xxx Xxxxxxxxx Xxxxx Property; Exhibit 8B-7 is a true and complete list of all Leases in effect as of the date hereof with respect to the 000 Xxxxxxxx Xxxxx Property; Exhibit 8B-8 is a true and complete list of all Leases in effect as of the date hereof with respect to the Windward Pointe 200 Property; Exhibit 8B-9 is a true and complete list of all Leases in effect as of the date hereof with respect to the 000 Xxxxxxxx Xxxxx Property; Exhibit 8B-10 is a true and complete list of all Leases in effect as of the date hereof with respect to the 245 Riverside Property; Exhibit 8B-11 is a true and complete list of all Leases in effect as of the date hereof with respect to the Overlook I Property and the Overlook II Property; Exhibit 8B-12 is a true and complete list of all Leases in effect as of the date hereof with respect to the Deerfield Point I & II Property; Exhibit 8B-13 is a true and complete list of all Leases in effect as of the date hereof with respect to the Parkwood Point Property; Exhibit 8B-14 is a true and complete list of all Leases in effect as of the date hereof with respect to the Norfolk Property. There are no Leases in effect as of the date hereof with respect to the Park Point Land Property. Except as set forth on Exhibit 8B, Exhibit 8B-1, Exhibit 8B-2, Exhibit 8B-3, Exhibit 8B-4, Exhibit 8B-5, Exhibit 8B-6, Exhibit 8B-7, Exhibit 8B-8, Exhibit 8B-9, Exhibit 8B-10, Exhibit 8B-11, Exhibit 8B-12, Exhibit 8B-13 and Exhibit 8B-14 to this Agreement, as of the date hereof, (i) Seller is the owner of the lessor’s knowledgeinterest in all such Leases, (ii) Seller has disclosed not modified any Lease or consented to Buyer all information relating any assignment or sublease of any Lease and, to the Property that could reasonably be expected to have a knowledge of Seller, no Lease has been modified, assigned or sublet in any respect, (iii) Seller has performed all material adverse effect obligations on the part of the landlord to be performed under each such Lease, and there are no agreements with any tenant for the performance of any work or otherwise with respect to any matter except as set forth in such Leases, (iv) Seller heretofore has completed all tenant improvements required under such Leases to be constructed by Seller, (v) except as set forth in such Leases, no tenant has any option to purchase the Property, to lease additional space in the Property, to extend the term of such tenant’s Lease, to put back to the landlord any space currently subject to such tenant’s Lease, or to terminate such tenant’s Lease, (vi) no notice of default has been given or received by Seller with respect to any Lease within the preceding ninety (90) days, and no tenant otherwise is in monetary default for more than thirty (30) days or, to the knowledge of Seller, is in material non-monetary default under its Lease, and (vii) no tenant has paid rent for more than one (1) month in advance.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of (c) After the date of this Agreement and again pending Closing or the earlier termination of this Agreement, Seller shall not, without first obtaining Purchaser’s consent, which consent shall not be unreasonably withheld by Purchaser, (i) accept Rent (or any other amounts payable to Seller, as landlord) more than thirty (30) days in advance of the due date thereof, (ii) extend or otherwise modify or amend, or terminate any Lease or consent to any requested assignment or subletting of any Lease (excluding renewal or extension, expansion or termination options, or assignment or subleasing rights, contained within any of the Leases in existence as of the date hereof that do not require Seller’s consent), or (iii) enter into any agreement for the lease or other occupancy of closing any portion of the Property (excluding renewal, extension or expansion options, or assignment or subleasing rights, contained within any of the Leases in existence as of the date hereof).
(d) Pending Closing or the earlier termination of this Agreement, subject to Section 8(c) above, Seller shall not take any action which would materially impair the condition of title to the Property.
(e) Attached to this Agreement as Exhibit 8E, Exhibit 8E-1, Exhibit 8E-2, Exhibit 8E-3, Exhibit 8E-4, Exhibit 8E-5, Exhibit 8E-6, Exhibit 8E-7, Exhibit 8E-8, Exhibit 8E-9, Exhibit 8E-10, Exhibit 8E-11, Exhibit 8E-12, Exhibit 8E-13, and Exhibit 8E-14 is a true and complete list of all written Service Contracts pertaining to the Property as of the date hereof. There are no Service Contracts in effect as of the date hereof with respect to the Park Point Land Property. Except as set forth on Exhibit 8E, Exhibit 8E-1, Exhibit 8E-2, Exhibit 8E-3, Exhibit 8E-4, Exhibit 8E-5, Exhibit 8E-6, Exhibit 8E-7, Exhibit 8E-8, Exhibit 8E-9, Exhibit 8E-10, Exhibit 8E-11, Exhibit 8E-12, Exhibit 8E-13, and Exhibit 8E-14, as applicable, all Service Contracts are in full force and effect and no party is in default thereunder and, after the date of this Agreement, Seller shall not modify or amend, or terminate any Service Contract other than for cause, or enter into any other agreement for comparable services for the benefit of the Property without in each instance first obtaining the prior written consent of Purchaser, which consent shall be granted if such agreement may be terminated upon thirty (30) days prior notice by owner and without the imposition of a termination fee or penalty, and otherwise shall not be unreasonably withheld, conditioned or delayed. If requested by Purchaser in writing prior to the expiration of the Feasibility Period, Seller shall give notice of termination of any Service Contract which by its terms may be terminated by Seller without the imposition of a termination fee or penalty, it being agreed however, that such notice in each instance shall be contingent upon Closing and that any Service Contract which by its terms shall survive Closing notwithstanding prior notice of termination given by Seller shall be assumed by Purchaser for the balance of its term and shall survive be subject to proration between the closingparties under Section 7 hereof. On the Closing Date, Seller shall terminate any management contract for the Property effective as of the Closing Date.
G. (f) As of the date hereof, there is no judicial, administrative or other adversarial suit, action or proceeding pending or, to the knowledge of Seller, threatened against Seller or the Property, which in any instance would bind the Property or Purchaser, or adversely affect Seller’s ability to convey the Property to Purchaser as required by this Agreement.
(g) To the best knowledge of Sellers’ knowledgeSeller, as of the date hereof, there are no pending or contemplated condemnation or eminent domain proceedings (or process or purchase in lieu thereof) affecting the Property or any part thereof. If any such proceedings are commenced or notice thereof is received by Seller prior to the Closing Date, the provisions of Section 14 of this Agreement shall govern.
(h) As of the date hereof, to Seller’s knowledge there are no, and Seller has not received written notice of any, uncured violations of any citylaw, countyordinance, stateorder or requirement of any governmental or quasi-governmental authority affecting the Property.
(i) At Closing, federalthere shall be no employees of the Property nor will there be any accrued salary, land use, fire, health, safety, environmental, hazardous materials vacation time or other lawsbenefits payable to any employee who could make a claim against the Property or Purchaser.
(j) Seller is not a foreign person as defined in the Internal Revenue Code of 1986, rulesas amended, regulationsand, ordinances on the Closing Date, Seller shall execute and deliver a certification of non-foreign status in the form reasonably required by the title or orders settlement agent conducting Closing.
(k) Seller has complied in all material respects with all of its obligations and has not received any written notice of default from: (i) the Norfolk Existing Lender under the Norfolk Existing Loan, and to Seller’s knowledge, no default or Event of Default, or event which with the giving of notice, the passage of time or both would constitute a default or Event of Default has occurred under the Norfolk Existing Loan, and Seller has provided Purchaser with full, complete and correct copies of the Norfolk Existing Loan documents, which have not been amended or modified except as contained in the documents delivered to Purchaser; and (ii) the Parkwood Point Existing Lender under the Parkwood Point Existing Loan, and to Seller’s knowledge, no default or Event of Default, or event which with the giving of notice, the passage of time or both would constitute a default or Event of Default has occurred under the Parkwood Point Existing Loan. Seller has provided Purchaser with full, complete and correct copies of the Parkwood Point Existing Loan Documents, which have not been amended or modified except as contained in the documents delivered to Purchaser;.
(l) Except as disclosed on Exhibit 8K, Exhibit 8K-1, Exhibit 8K-2, Exhibit 8K-3, Exhibit 8K-4, Exhibit 8K-5, Exhibit 8K-6, Exhibit 8K-7, Exhibit 8K-8, Exhibit 8K-9, Exhibit 8K-10, Exhibit 8K-11, Exhibit 8K-12, Exhibit 8K-13 and Exhibit 8K-14 to this Agreement and except for paints, commercial cleaning agents and other substances ordinarily used in the repair, maintenance or operation of the Property in compliance with all Environmental Laws, (i) Seller has not used the Property and, to the knowledge of Seller, the Property has not been used for, the storage, manufacture, treatment or disposal of “ Hazardous Substances,” (ii) to the knowledge of Seller, no Hazardous Substances requiring remediation or removal are located on, in or under the Property, and (iii) no action under any “Environmental Laws” has been taken against Seller, nor has Seller received written notice of any violation of any Environmental Laws with respect to the Property. The environmental reports, studies and analyses relating to the Property listed on Exhibit 8K, through Exhibit 8K-14 are the environmental reports used by the respective Seller, in connection with its ownership and operation of the Property. As used herein, “Hazardous Substances” means all materials subject to regulation under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§6901 et seq.
H. To the best of Seller’s knowledge, the Property Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., the Toxic Substance Control Act, 15 U.S.C. §§2601 et seq., or any other applicable federal, state or local law or regulation now in force or hereafter enacted relating to materials having adverse effects on human health or the environment, and includes, but is not contaminated withlimited to, nor threatened with contamination from outside sources by any chemicalasbestos, material or substance polychlorinated biphenyls (PCBs), petroleum products and lead-based paints. All such laws relating to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known hazardous waste disposal and toxic substances are collectively referred to pose a risk to health and safety, and the Property has never been used herein as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances“Environmental Laws.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.”
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant represents and represent warrants to Buyer as follows:
A. Purchaser that at closing Seller has will have good and will convey good, marketable, and insurable indefeasible fee simple title to the Subject Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessmentscovenants, if anyrestrictions, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way way, easements, and any other matters affecting title to the Subject Property except for the Permitted Exceptions, and at closing, Seller will be in a position to convey the Subject Property to Purchaser free and clear of recordall liens, utility easements or other easements for rightencumbrances, covenants, restrictions, rights-of-way of recordway, easements and existing tenant leases, and other such matters affecting title except for such other matters as are approved the Permitted Exceptions. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, Seller shall not sell, assign, or waived by Buyer convey any right, title, or interest whatsoever in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Subject Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures create or debris of permit to exist any nature on lien, security interest, easement, encumbrance, charge, or condition affecting the Property.
D. The improvements and personal property located on or used for the Subject Property (including, but not limited to, other than the utilities, mechanical systems, roof, foundation and wallsPermitted Exceptions) are in good working order and in reasonable condition for without promptly discharging the age same prior to closing. All of the improvements foregoing representations and warranties of Seller are made by Seller both as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement hereof and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and again as of agreed that the date of closing representations and warranties set forth hereinabove shall survive the closing.
G. To closing of this Contract only for a period of two (2) years following the best of Sellers’ knowledgeclosing date, there are but not thereafter, and Seller shall have no violations liability of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect kind whatsoever for any breach thereof except to the Propertyextent a claim is asserted against Seller within such two (2) year period.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant and represent to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property of record, free and clear of all liens, encumbrances, claims leases, claims, and charges; subject only to general real estate taxes and installments for special assessmentsall easements, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for rightrights-of-way of recordway, utility easements or covenants, conditions and restrictions; and any other easements for right-of-way of recordmatters affecting title thereto, and existing tenant leases, and except for such other matters as are approved or Buyer's objections thereto are waived by Buyer in writingwriting (the "Permitted Encumbrances").
B. To the best of Seller's knowledge and belief, the conveyance of the Property pursuant hereto will not violate any applicable statute, conditional use, variance, ordinance, governmental restriction or regulation, or any private restriction or agreement.
C. The Property is benefited by direct access to a publicly dedicated street or road and other adjacent right of ways and shall be conveyed as a separate legal and tax parcel (the "Legal Parcel").
D. There is no litigation pending, or to the best of Seller’s 's knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller Seller, which may have a material adverse effect upon the Property.
C. E. Seller is not a "foreign person" (as defined in section 1445(f)(3) of the Internal Revenue Code and regulations issued thereunder).
F. Neither Seller nor, to the best of Seller's knowledge, any of Seller's members, are an entity or person: (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 ("EO13224"); ii) whose name appears on the United States Treasury Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically Designated National and Blocked Persons" (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, (xxxx://xxx.xxxxx.xxx/offices/enforcement/ofac/sdn/t11sdn.pdf) ; (iii) who commits, threatens to commit or supports "terrorism," as that term is defined in EO13224; (iv) is subject to sanctions of the United States government or is in violation of any federal, state, municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations relating to terrorism or money laundering, including, without limitation, EO13224 and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; or (v) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in subsections (i) - (v) above are herein referred to as a "Prohibited Person"). Neither Seller nor its members shall knowingly: (A) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; or (B) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224;
G. Seller is not aware of any private covenant or restriction that would prohibit or adversely impact the development or operation of the Property.
H. To the best of Seller’s 's knowledge, Seller represents that there are no underground tanks, basements, foundations, xxxxx, cisterns, or other underground structures or debris of any nature on the Property. Seller further represents that the Property is not located in a designated flood plain, nor does the Property contain any wetlands.
D. I. Seller has the requisite power and authority to enter into and perform this Agreement and those Seller's Closing Documents to be signed by it.
J. The improvements and personal property located on or used for the Property Improvements (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) ), to the best of Seller's knowledge, are in sound condition and in good working order and in reasonable condition for the age of the improvements as of the effective date of this AgreementEffective Date hereof. Seller shall further have the ongoing on-going obligation up through the closing Closing Date to inform Buyer in writing of any defect in the Improvements that occur between the Effective Date of this Agreement and the Closing Date. Seller's written notice to Buyer of any defect in the improvements that occur between Improvements shall be considered for purposes herein to be an adverse change in the effective date of this Agreement and the closing dateProperty Documents.
E. K. To Seller’s 's knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In . If the event Seller subsequently becomes aware of a the fact that any of the representations and warranties made herein are is no longer true and accurate, then the Seller shall promptly immediately disclose same in writing to the same Buyer. Seller's written notice to BuyerBuyer of any inaccuracy in the representations and warranties made herein shall be considered to be an adverse change to the Property Documents. Each of the warranties and representations contained in this Section or in and other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing Closing Date. Seller shall indemnify Buyer, its successors and assigns, against, and shall survive the closing.
G. To the best of Sellers’ knowledgehold Buyer, there are no violations its successors and assigns, harmless from, any costs, expenses or damages of any citykind or nature, countyincluding reasonable attorneys' fees, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best which Buyer may incur because of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage breach of hazardous or regulated substances.
I. All any of the lease information provided representations and warranties herein contained, whether incurred prior to Buyer pursuant to Section 15 of or after the Closing Date. All warranties, representations and indemnifications contained in this Agreement is complete, true and accurateshall survive Closing.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenant, warrant makes the following representations and represent covenants to Buyer with regard to the Property, all of which representations and covenants shall be deemed remade as followsof Closing and shall survive the Closing for a period of twelve (12) months, except as provided herein:
A. (a) The Seller warrants and represents that, to the best of the Seller’s actual knowledge, no action or proceeding is pending, threatened or instituted for condemnation or for a zoning change of any part of the Property. If any such action is filed, the Buyer shall have the option of terminating this Agreement or Closing under this Agreement with an assignment of any awards, either then paid or yet to be paid.
(b) The Seller warrants and represents that, to the best of the Seller’s actual knowledge, the Property is free of violations, and the interior and exterior structures are in a good state of repair, free of leaks, structural problems, and mold, and the Property is in full compliance with Federal, State, City and County ordinances, including ADA compliance, environmental laws and concerns.
(c) As of the date hereof, there are no leases or rental agreements affecting the Property other than the Leases delivered by Seller to Buyer pursuant to subsection 5(a) above and as described upon the Rent Roll described upon Exhibit “B” and delivered to Purchaser by Seller pursuant to the terms of Paragraph 5(b) and Paragraph 9(a)(xv), hereof, no Lease exceeds the term stated in the Leases, nor does anyone have an option or first refusal to purchase all or any part of the Property (other than Publix). Between the date hereof and the earlier of the Closing date or the termination of this Agreement, Seller shall not amend, modify or terminate the Leases, or enter into new leases, of space at the Property without first obtaining Buyer's prior written approval. As of the date hereof, Seller is the holder of all of the landlord's right, title and interest in, to and under the Leases. Seller, to its knowledge, has not received, nor is Seller aware of, any claim from any tenant under the Leases alleging any type of default by the landlord under the Leases that has not been cured or demanding any work that has not been performed or payment from landlord that has not been made.
(d) There are no current or contemplated assessments, other than such assessments as appear on the annual real estate tax xxxx from the county tax collector.
(e) As of the date hereof, Seller, to its knowledge, is not aware of and has received no building code violation notices with respect to the Property (other than notices of violations which have been removed or corrected).
(f) Except as may be disclosed in the Pre-Closing Deliveries, there are no persons employed by Seller in connection with the operation of the Property, and except as may be disclosed in the Pre-Closing Deliveries, there are no maintenance, advertising, management, leasing, employment, or service contracts affecting the Property that will be in effect at Closing and binding on Buyer unless expressly assumed in writing by Buyer. Otherwise, Seller shall terminate any such employee and any such contracts (not expressly assumed by Buyer) at or prior to Closing.
(g) That (i) Seller has the capacity and requisite authority to enter into and carry out this Agreement and the transaction contemplated hereby and will convey good, marketable, provide evidence thereof to Buyer at Closing and insurable (ii) Seller owns fee simple title to the Property free subject to all matters of record.
(h) Except as otherwise expressly provided herein, Seller shall not further encumber the Property or any of the improvements or personal property located thereon. Between the date of this Agreement and clear the earlier of the Closing date or the termination of this Agreement, Seller shall not voluntarily create any exception to title to the Property.
(i) To the best of Seller's knowledge, as of the date hereof, Seller has received no notices of violation of any applicable federal, state or local law, statute, ordinance, rule or regulation regulating the use, generation, storage, handling or disposal of any hazardous wastes, toxic, hazardous or dangerous substances or similar substances or materials defined as hazardous, toxic or environmentally unsafe (“Environmental Laws”) under any of the aforesaid laws, statutes, ordinances, rules or regulations which have not been cured.
(j) No change in the manner of calculation of percentage rent will occur from the date of delivery of the Pre-Closing Deliveries under Section 5 hereof, through the date of Closing, except as expressly set forth in the Leases.
(k) There exist no non-recorded development, cost-sharing, recapture or like-agreements burdening either Seller or the Property that will survive the Closing of the transactions described by this Agreement.
(l) Seller represents and warrants that there are no claims for brokerage commissions, finders' fees, or similar compensation in connection with this Agreement based on any arrangement or agreement entered into by Seller and binding upon Buyer, except as set forth in Section 12 hereof.
(m) The Seller warrants and represents that, to the best of the Seller’s actual knowledge, the tenants of the Leases, in conjunction with the property owner’s association, are responsible for and pay all liensoperating expenses relating to the Property (with the exception of Publix, encumbrancesPizza Hut, claims and charges; subject only to general Tijuana Flats), including but not limited to, real estate taxes taxes, REA/OEA agreements, utilities, insurance, and installments for special assessmentscommon area maintenance expenses.
(n) The Seller warrants and represents that, if anyto the best of the Seller’s actual knowledge, not yet levied the Leases are in full force and certified for collection effect and except for all building rents are current with the exception of those tenant’s shown on Exhibit “C” attached to and zoning lawsincorporated into this Agreement by reference.
(o) The Seller warrants and represents that, ordinances to the best of the Seller’s actual knowledge, there is no suit, action or statutesarbitration, protective covenants and restrictions of record, reservation of minerals of record and utility easements or legal or other easements for right-of-way of recordproceeding or governmental investigation current or pending except as listed on Exhibit “D” attached to and incorporated into this Agreement by reference. As used herein, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or the terms “to the best of Seller’s knowledge, investigation, condemnation ,” or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of “to Seller’s knowledge” or similar terms shall mean to the current, actual knowledge of Xxxxxxx X. Xxxxxxx, without investigation or inquiry. If (i) on the date hereof Seller had no knowledge that a representation or warranty was false or misleading and (ii) after the date hereof Seller obtains knowledge that would cause any representation or warranty to become false or misleading, Seller represents that there are no underground tanksshall so inform Buyer in writing. Upon receipt of said notice, xxxxxBuyer shall have a period of ten (10) days within which to terminate this Agreement, in which case the Xxxxxxx Money Deposit shall be promptly refunded to the Buyer, this Agreement shall be null and void and neither party shall have any further rights or other underground structures or debris of any nature on obligations hereunder except for indemnity obligations which survive the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date termination of this Agreement. Seller shall have If Buyer does not so terminate, the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section applicable representation or in other Sections of this Agreement warranty shall be deemed reformed as to be made as of disclose and exclude the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of information set forth in Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance notice to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesBuyer.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Samples: Purchase and Sale Contract (Inland Diversified Real Estate Trust, Inc.)
Representations, Warranties and Covenants of Seller. Seller does hereby covenant(and each of them individually) represents, warrant warrants and represent covenants with and to Buyer as followsand shall certify to Buyer at Closing that:
A. Advanced and FTG are corporations, and TFI is a limited liability company, each of which is, duly organized, validly existing, and in good standing under the laws of the State of Colorado, with full power to own property and to transact business as it is now being transacted. Each Seller has full authority of its Board of Directors or other managing power to enter into and will convey goodperform this Agreement in accordance with its terms, marketablewithout causing the breach or default of any obligation or commitment of each Seller to any other person. In addition, within fourteen (14) days of execution of this Agreement, each Seller shall obtain from its Shareholders or Members (as the case may be) and its Board of Directors or managing power written consents to and resolutions approving of the sale contemplated in this Agreement, and insurable title shall promptly provide copies of such consents and resolutions to Buyer.
B. Seller is not a party to any agreement, contract, or commitment, nor otherwise bound under any commitment or obligation, with or in favor of any other person or party which conveys to such person or party the Property right to purchase the Purchased Assets, or in the case of TFI, the Real Estate, other than sales of Inventory in the ordinary course of business.
C. Other than as described in Appendix 7.C., Seller's interest in the Purchased Assets will be transferred to Buyer at Closing free and clear of all liens, encumbrances, claims charges and charges; subject only to general real estate taxes and installments for special assessmentsadverse claims, if anycontractual or otherwise, not yet levied and certified for collection and except for the Assumed Liabilities. Other than the Assumed Liabilities, Seller shall pay or make appropriate accruals so as to pay all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters its liabilities in full as are approved or waived by Buyer in writingthey fall due.
B. There is D. Other than as described in Appendix 7.D., there are no litigation suits, actions, or proceedings pending, or to the best of Seller’s knowledge's knowledge and belief, investigationthreatened by any person or party, condemnation including actions by any governmental authority or proceeding agency, against or involving the Purchased Assets or the operation of the Business, and in the case of TFI, against or involving the Real Estate.
E. During the interim period between the signing of this Agreement and the Closing:
(1) Seller will continue to operate the Business and maintain the Purchased Assets and Real Estate in the same manner as Seller has operated the Business and maintained the Purchased Assets in the ordinary course, and shall not without first obtaining the written consent from Buyer enter into a new contract or renew an existing contract except for sales and purchases of Inventory in the ordinary course of business in accordance with ordinary business terms and prices. Notwithstanding the foregoing, if business necessity requires Seller to enter into an agreement before it can obtain Buyer's consent, Seller may do so subject to Buyer's right to refuse to assume any such contractual obligation.
(2) Seller will not commit any act which will materially impair the going concern value of the Business and Seller will not make any assignment or grant of security interest or other lien which will encumber the Purchased Assets. For purposes of this Section, the impairment shall be measured as if Seller is a stand-alone business, and the materiality of such impairment shall be based on Buyers method of valuing Seller.
(3) Inventory shall be in good and merchantable condition and be of the species, grade and quantities normally used in operation of the Business;
(4) Seller shall maintain its financial books and records in accordance with Generally Accepted Accounting Principles (GAAP). All assets, including the Inventory, shall be accounted for in accordance with GAAP;
(5) Since at least January 1, 1997, Seller has not transferred any fixed asset(s) in excess of the aggregate amount of One Hundred Thousand Dollars ($100,000.00), other than Inventory sold in the ordinary course of business.
F. Except as provided in Appendix 7.F., Seller has not received any notices (written or oral) from any third party alleging that Seller has violated any term of a lease or contract, nor has Seller received any notices from any governmental entity stating that it is or may be in violation of any kind threatened against statute, ordinance, regulation or governmental order related to the Seller which may have a material adverse effect upon Purchased Assets and the Property.
C. Real Estate. To the best of Seller’s 's knowledge, which shall include the knowledge of the Officers and Directors of Advanced, formed during the reasonable conduct of the ordinary course of business, Seller's records are materially true, accurate, complete and in compliance with all applicable laws and governmental orders, and Seller represents that there are no underground tankshas materially complied with all laws, xxxxxregulations, ordinances, and other legal requirements relating to the construction, development, and operation of the Business, including pollution or protection of the environment, including laws relating to emissions, discharges, releases of pollutants, contaminants or hazardous or toxic materials or wastes into ambient air, surface water, ground water or land, or other underground structures otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or debris handling of any nature on the Propertypollutants, contaminants or hazardous or toxic materials or wastes.
D. The improvements G. Seller has or will timely file all appropriate returns, and except as provided with regard to the sharing of sales and real estate transfer taxes and levies, has paid or shall pay prior to Closing, all personal property located on or used for property, income, withholding, sales, use, business activity, FICA, FUTA, unemployment, and all other taxes due prior to the Property (includingClosing Date relating to the Purchased Assets and the operation of the Business.
H. All utility bills, including but not limited toto gas, the utilitieselectric, mechanical systemstelephone, rooffuel oil, foundation water and walls) are in good working order sewer bills, and in reasonable condition for the age of the improvements assessments shall be paid by Seller through Closing. Seller shall arrange with all utility providers to prepare cut-off statements as of the effective Closing Date to be billed to Seller. Buyer shall arrange for billing to be changed to Buyer after the Closing Date.
I. Seller shall make available for inspection and review by Buyer, as soon as possible after the date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect , but in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the no event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best of Seller’s knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided to Buyer pursuant to Section 15 of this Agreement is complete, true and accurate.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.later than fourteen
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantmakes the following representa- tions, warrant warranties and represent covenants, each of which is stated by Seller to Buyer be true and correct on the date hereof and on the Closing Date and each of which shall survive the Closing: (i) Except as follows:
A. Seller has and will convey good, marketable, and insurable title disclosed to Purchaser or its agents prior to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age expiration of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledgeApproval Period, Seller has disclosed no knowledge of any: 1. existing latent defects or seismic conditions concerning the Real Property or materially incorrect income or expense figures in any financial statements prepared by or for Seller and delivered to Buyer all information Purchaser regarding the Property. 2. any claim, litigation or administrative action, arbitration, proceeding pending before any court, agency or official, nor any such claim or action threatened in writing, relating to the Seller or the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made as of the date of this Agreement and again as of the date of closing and shall survive the closing.
G. To the best of Sellers’ knowledge, there are no violations of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To validity of any statutes, ordinances, regulations or restrictions or any permits or approvals thereunder relating to the best construction of Seller’s knowledge, any Improvements on the Property is not contaminated or the operation thereof nor any outstanding contingent liabilities affecting the Property; 3. written notice of violations of City, County, State, Federal, building, zoning, fire or health codes, regulations or ordinances, filed or issued against the Property; 4. Hazardous Substance in existence on or below the surface of the Real Property or in any building located upon the Real Property, including, without limitation, contamination of soil, subsoil or ground water, which constitutes a violation of any applicable law, rule or regulation of any government entity having jurisdiction thereof except for office and medical supplies in customary quantities; 5. thing that would suggest any portion of the Property having ever been used by Seller or any tenant of any portion of the Property during Seller's ownership thereof as a waste storage or disposal site or gasoline station. Without limiting the other provisions of this Agreement, Seller shall reasonably cooperate with Purchaser's investigation of matters relating to the foregoing provisions of this paragraph and to provide access to and copies of any data and/or documents dealing with potentially Hazardous Substances used at the Property and any disposal practices followed in accordance with, nor threatened with contamination from outside sources by any chemicaland subject to the provisions of, material or substance to which exposure is prohibitedParagraph 6 hereof. Seller agrees that Purchaser may make inquiries of governmental agencies regarding such matters, limited or regulated by federalwithout liability for the outcome of such discussions. For the purposes of this Agreement, state"Hazardous Substances" shall mean (A) substances defined as "hazardous substances" in (i) the Comprehensive Environmental Response, countyCompensation and Liability Act of 1980, local or regional authoritiesas amended (42 U.S. C. ss. 9601 et seq.), or which is known (ii) the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss. 6901 et seq.), together with the regulations enacted pursuant to pose a risk to health and safetysuch acts, and the Property has never been used (B) those substances defined as a landfill, dump site, underground improvements or for storage of "hazardous or regulated substances.
I. All wastes" in ss. 25117 of the lease information provided to Buyer California Health and Safety Code or as "hazardous substances" in ss. 25316 of the California Health and Safety Code together with the regulations enacted pursuant to Section 15 of this Agreement is complete, true and accuratesuch statutes.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has and will convey good, marketable, and insurable title to the Property free and clear each of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date of this Agreement and the closing date.
E. To Seller’s knowledge, Seller has disclosed to Buyer all information relating to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections of this Agreement shall be deemed to be made correct as of the date of this Agreement and again as of the date Closing Date:
(a) Seller has sole and exclusive ownership of closing and shall survive all of the closingUnits. There are no judgments, liens, or other encumbrances upon the Units except as set forth on Schedule 4(a).
G. To (b) Seller has carefully reviewed the transactions contemplated by this Agreement. After reviewing and discussing the matter, Seller’s Board of Directors has agreed that it is in the best interests of Sellers’ knowledge, there are no violations Seller to enter into this Agreement. A true and correct copy of any city, county, state, federal, land use, fire, health, safety, environmental, hazardous materials or other laws, rules, regulations, ordinances or orders with respect to the Property.
H. To the best Resolution of Seller’s knowledgeBoard of Directors approving and authorizing Seller to enter into this Agreement is attached hereto as Exhibit “B”.
(c) Seller has all requisite power and authority to enter into this Agreement, to sell the Property Units hereunder and to carry out and perform its other obligations under the terms of this Agreement.
(d) This Agreement has been duly executed and delivered by Seller and constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its terms. Seller is not contaminated withrequired to give any notice to, make any filing with or obtain any authorization, consent or approval of any authority or person in order for the Parties to consummate the transactions contemplated by this Agreement. All corporate actions on the part of Seller and any applicable third party necessary for the purchase and sale of the Units hereunder have been taken.
(e) Neither the execution or delivery of this Agreement, nor threatened with contamination from outside sources by the consummation of the transactions contemplated herein will violate any chemicalprovision of the Articles of Incorporation, material Bylaws or substance any other agreement or instrument to which exposure Seller is prohibited, limited or regulated by federal, state, county, local or regional authoritiesa party, or to which is known to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substancesUnits are subject.
I. All (f) No authorization, approval or consent of any court or governmental instrumentality is or will be necessary in order to make the lease information provided to Buyer pursuant to Section 15 execution and delivery of this Agreement is complete, true and accurateor the consummation of the transaction contemplated herein legally enforceable against Seller.
J. There is no (g) Seller has good and marketable title to the Units and, as of the Effective Date, will transfer and convey same to Buyer free and clear of all options, proxies, voting trusts, voting agreements, judgments, pledges, charges, rights of first refusal or first offer, claims, transfer restrictions, liens, security interests and other debt encumbrances of every kind or lien nature whatsoever, other than those items listed on Schedule 4(a), whether arising by agreement, operation of law or otherwise, except those imposed by this Agreement or securities laws generally.
(h) Seller has had the opportunity to receive all information deemed necessary by Seller in order to evaluate the fairness of the terms of this Agreement. Seller acknowledges that Seller has had representation on the property at Board of Directors of the time Company and has thorough knowledge of closing nor shall the financial condition and operations of the Company.
(i) Seller place any other debt or lien on has had ample opportunity to consult with an attorney, accountant and investment advisor of Seller’s choice to advise Seller regarding the property other that legal, tax and financial aspects of the aforementioned Contract for Deed during sale contemplated by this Contract for DeedAgreement.
Appears in 1 contract
Samples: Units Purchase Agreement (Gabriel Technologies Corp)
Representations, Warranties and Covenants of Seller. Subject in all respects to the matters set forth in Section 8 above, Seller does hereby covenantrepresents, warrant warrants and represent covenants to Buyer as follows:
A. Seller has that the following matters are true and will convey good, marketable, and insurable title to the Property free and clear of all liens, encumbrances, claims and charges; subject only to general real estate taxes and installments for special assessments, if any, not yet levied and certified for collection and except for all building and zoning laws, ordinances or statutes, protective covenants and restrictions of record, reservation of minerals of record and utility easements or other easements for right-of-way of record, utility easements or other easements for right-of-way of record, and existing tenant leases, and except for such other matters as are approved or waived by Buyer in writing.
B. There is no litigation pending, or to the best of Seller’s knowledge, investigation, condemnation or proceeding of any kind threatened against the Seller which may have a material adverse effect upon the Property.
C. To the best of Seller’s knowledge, Seller represents that there are no underground tanks, xxxxx, or other underground structures or debris of any nature on the Property.
D. The improvements and personal property located on or used for the Property (including, but not limited to, the utilities, mechanical systems, roof, foundation and walls) are in good working order and in reasonable condition for the age of the improvements correct as of the effective date of this Agreement. Seller shall have the ongoing obligation up through the closing to inform Buyer of any defect in the improvements that occur between the effective date execution of this Agreement and will also be true and correct as of the closing dateClose of Escrow:
(a) Seller is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware.
E. To Seller’s knowledge, (b) This Agreement and all the documents and items to be executed and delivered by Seller has disclosed to Buyer all information relating pursuant to the Property that could reasonably be expected to have a material adverse effect on the Property.
F. In the event Seller subsequently becomes aware of a fact that any of the representations and warranties made herein are no longer true and accurate, then the Seller shall promptly disclose the same to Buyer. Each of the warranties and representations contained in this Section or in other Sections terms of this Agreement shall Agreement, (i) have been or will be deemed to duly authorized, executed and delivered by Seller, (ii) are or will be made legal, valid and binding obligations of Seller as of the date of their respective executions, (iii) are or will be enforceable in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of contracting parties generally); and (iv) do not and will not, at the Close of Escrow, violate any provisions of any agreement to which Seller is a party. Seller shall deliver to Buyer, within thirty (30) days after Opening of Escrow, a set of resolutions of the board of directors of Seller confirming the due authorization, execution and delivery of this Agreement by Seller and again the person(s) authorized to execute any agreement or other instrument to be delivered in connection with this Agreement, which resolutions shall be certified by the corporate secretary of Seller.
(c) To Seller’s actual knowledge, the Property Documents are true and correct in all material respects as of the date of closing such document; provided, however, that Seller makes no representation or warranty and shall survive have no liability or responsibility for (i) any inaccuracy in the closingsquare footages recited for the Improvements herein or in any Property Document, and (ii) anything set forth in any third party reports which are included in the Property Documents.
G. (d) To Seller’s actual knowledge, and except as otherwise disclosed to Buyer in writing, no condemnation, eminent domain or other legal action is pending or threatened in writing against the best Property, nor has Seller any actual knowledge of Sellers’ any assessments affecting the Property other than as set forth in the Commitment.
(e) To Seller’s actual knowledge, and except as otherwise disclosed to Buyer in writing, there are no violations of any citycovenants, countyconditions or restrictions applicable to the Property, stateand Seller has received no written notice or complaint with respect to any such violation or alleged violation.
(f) To Seller’s actual knowledge: (i) there are no leases or tenancy agreements affecting the Property, federalor any portion thereof, land useother than the Leases delivered to Buyer and reflected in the Rent Schedule; (ii) the information set forth in said Rent Schedule is true and correct in all material respects as of the date thereof; (iii) there are no amendments, firemodifications or supplements to the Leases, healthwhether oral or written, safety, environmental, hazardous materials except those disclosed to Buyer in the Property Documents; (iv) Seller has not received any rentals or security or other laws, rules, regulations, ordinances deposits thereunder other than as set forth in the Leases; and (v) there are no current material defaults under the Leases.
(g) There is not currently in effect any unrecorded agreement entered into by Seller or orders by which Seller is bound by which a third party has been granted any parking rights at or with respect to the PropertyProperty except for the Leases and except as otherwise disclosed to Buyer in the Property Documents.
H. (h) Except as otherwise disclosed to Buyer in the Property Documents, Seller has not received any written correspondence challenging the validity of any easement appurtenant to the Property as shown on the ALTA survey made available to Buyer as part of the Property Documents.
(i) To Seller’s actual knowledge, Seller is not included on the best List of Specially Designated Nationals and Blocked Persons maintained by OFAC, or resides in, or is organized or chartered under the laws of, (A) a jurisdiction that has been designated by the U.S. Secretary of the Treasury under Section 311 or 312 of the Patriot Act as warranting special measures due to money laundering concerns or (B) any foreign country that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur. For purposes of the foregoing representations and warranties, “Seller’s actual knowledge” shall mean the actual knowledge of Xxxx Xxxxxxxx without duty of inquiry and without being charged with record or constructive knowledge. Notwithstanding anything else contained in this Agreement, if any representation or warranty made by Seller hereunder is true and correct as of the execution of this Agreement but is not true and correct as of the Close of Escrow, so long as the same has not occurred by reason of Seller’s knowledgewillful act or omission, then Seller shall not be liable to Buyer in damages by reason thereof and Buyer’s sole remedy shall be the following: (i) waive Buyer’s closing condition set forth in Section 3(a)(iii) and close Escrow or (ii) terminate the Agreement and receive the Downpayment minus the Independent Consideration. Notwithstanding anything to the contrary contained in this Agreement, Buyer agrees that any claim(s) brought by Buyer against Seller after the Close of Escrow based on an alleged breach of a representation and warranty by Seller must (1) be filed in the appropriate forum pursuant to this Agreement within twelve (12) months from the Close of Escrow, and (2) aggregate to more than $100,000.00. In addition and without limitation, (x) the maximum amount of liability that Seller shall have under any circumstance for any and all surviving obligations under this Agreement (including, without limitation, any obligation arising out of any representation or warranty made by Seller in this Agreement and any liability under any instrument or document delivered by Seller at or in connection with the Close of Escrow but excluding the Excluded Claims as defined below) shall not exceed an amount equal to $1,000,000 in the aggregate (the “Maximum Seller Liability Cap”), and (y) Buyer shall in no event be entitled to seek punitive damages on account of any such surviving obligation of Seller under this Agreement or other Seller obligation arising out of an instrument or document delivered by Seller at or in connection with the Close of Escrow. Notwithstanding the immediately preceding sentence, the Property is Maximum Seller Liability Cap shall not contaminated with, nor threatened with contamination from outside sources by any chemical, material or substance apply to which exposure is prohibited, limited or regulated by federal, state, county, local or regional authorities, or which is known the following (collectively the “Excluded Claims”): (i) Seller’s obligations and indemnification liabilities under the Environmental Management Agreement and (ii) Seller’s obligation to pose a risk to health and safety, and the Property has never been used as a landfill, dump site, underground improvements or for storage of hazardous or regulated substances.
I. All of the lease information provided pay base rent to Buyer pursuant to Section 15 of this Agreement is complete, true and accurateunder the Half Dome Leases.
J. There is no other debt or lien on the property at the time of closing nor shall Seller place any other debt or lien on the property other that the aforementioned Contract for Deed during this Contract for Deed.
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