Representations Warranties Covenants and Agreements of Seller. To induce Purchaser to enter into this Agreement and to purchase the Project, Seller hereby represents and warrants to, and covenants and agrees with Purchaser, as follows, with the understanding and intention that Purchaser is relying upon the accuracy of such representations and warranties, and the agreement of Seller to comply with and perform such covenants and agreements, which representations, warranties, covenants and agreements shall be deemed (except as provided below) to be made by Seller to Purchaser as of the Effective Date and as of the Closing Date and thereafter (it being understood that such representations, warranties, covenants and agreements shall not be merged into the documents to be executed on the Closing Date but rather shall survive for the period set forth in Section 17.4 of this Agreement), and this Agreement is contingent upon and subject to the truth and accuracy of such representations and warranties, and the full and complete satisfaction of such covenants and agreements, and in the event such representations and warranties are not true and accurate as of Closing and any such covenants and agreements are not satisfied on or prior to Closing, Purchaser shall have the option of terminating this Agreement at any time prior to Closing, whereupon the Title Company shall promptly return the Xxxxxxx Money to Purchaser and all parties hereto shall be released from any and all liability hereunder except as set forth herein, or Purchaser may, at its sole option and discretion, waive in writing Seller’s satisfaction of any such representations, warranties, covenants or agreements and consummate the transaction contemplated hereby (it being understood and agreed by Seller and Purchaser that Seller shall remain liable during the survival period provided for in Section 17.4 hereof for all representations, warranties, covenants and agreements made by Seller in this Agreement and not expressly waived in writing by Purchaser as hereinabove provided): (1) From the Effective Date until the Closing, Seller shall (i) maintain the Project in its present condition, subject to ordinary wear and tear, damage, casualty and condemnation; (ii) continue to operate the Project in a good, businesslike manner; and (iii) shall not modify or alter, in any material respect, any repair or maintenance programs or policies now in effect with respect to the Project. (2) Seller has delivered to Purchaser copies of all insurance policies relating to the Project. Seller shall continue all such insurance policies in full force and effect through the Closing Date, and Seller shall neither cancel nor amend any of the same without Purchaser’s prior written consent. (3) Seller has not received any notices or requests from any carrier of any insurance with respect to the Project, and Seller shall immediately deliver copies of any such notice or request to Purchaser. (4) Seller has not received any written or oral notices or requests from any mortgagee, insurance company or Board of Fire underwriters, or any organization exercising functions similar thereto, requesting the performance of any work or alterations in respect to the Project which have not been performed. (5) From the Effective Date through the Closing Date, Seller shall not enter into any new Property Agreements without the prior written consent of Purchaser unless such new Property Agreements are cancelable on or before the Closing Date or Seller agrees to remain liable for such Property Agreement under the Lease. The copies of the Property Agreements delivered to Purchaser hereunder are true, accurate and complete, and Seller has received no notice and has no knowledge of any material, uncured breach or default by Seller or by any other party under the Property Agreements. Prior to the Closing Date, Seller shall comply with each and every material undertaking, covenant and obligation under the Property Agreements and the same shall not be materially modified, amended, terminated, renewed or otherwise altered without the prior written consent of Purchaser. (6) There is no pending action, suit, claim, litigation, or proceeding by any entity, individual or governmental agency served upon Seller and affecting Seller or the Project which would in any way constitute a lien, claim or obligation of any kind against the Project, and to the best of Seller’s knowledge, there is no such action, suit, claim, litigation or proceeding threatened. (7) There are no pending condemnation or similar proceedings or assessments affecting the Project or any part thereof, nor to the best of Seller’s knowledge, are any such assessments or proceedings contemplated by any Governmental Authority. (8) No restrictive covenant or zoning (or its equivalent) classification (or, other Governmental Requirement) is materially violated by the present use and maintenance of the Project and appurtenant uses (including, without limitation, parking uses associated with the Project), and, to Seller’s best knowledge, there are no proceedings pending to change such zoning (or its equivalent) classification, and Seller shall not itself apply for or acquiesce in any such change. (9) Seller has not received any notice of any breach of any Governmental Requirement or restrictive covenant which remains uncured, and is not under any order of any Governmental Authority, with respect to the Project or the Seller’s present use and operation of the Project. (10) The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party will not conflict with or result in the breach of any Governmental Requirement or of any agreement or instrument to which Seller is now a party or to which it is subject, or constitute a default thereunder, and does not require Seller to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties. (11) Seller has all requisite power and authority to carry on Seller’s business as it is now being conducted and to enter into and perform this Agreement. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance or observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party have been duly authorized by all requisite action and are enforceable against Seller in accordance with their respective terms. The individual executing this Agreement on behalf of Seller is authorized to act for and on behalf of and to bind Seller in connection with this Agreement and in so doing to bind Seller to all of the terms and provisions hereof. (12) The financial statements, reports, and other data relative to the Project heretofore furnished by Seller to Purchaser are (and all such statements, reports, information, and other data hereafter furnished by Seller to Purchaser will be) true and correct in all material respects, and fairly reflect the financial condition, the financial results or other subject matter thereof as of the dates thereof. (13) All of the Personalty is and shall be owned by Seller on the Closing Date, free and clear of all liens, claims, encumbrances, and security interests, except as reflected in the Title Commitment or the UCC Report. (14) There are no labor disputes, organizational campaigns or union contracts existing or under negotiation as of the Effective Date with respect to the Project for the construction, maintenance and operation thereof, and there are no employees or associates, either of Seller or any other employer engaged in the construction, operation and maintenance of the Project, to whom Purchaser shall, at or after the Closing Date, have any obligation whatsoever. (15) Seller has maintained and does presently maintain in full force and effect all Environmental Permits necessary or required for the ownership and operation of the Project, and Seller has provided, or will provide, copies of all such Environmental Permits to Purchaser for its review. (16) To the best of Seller’s knowledge, there is not and there will not be as of the Closing Date exist any Environmental Condition on or at the Realty or any other matter on or connected with the Project that would cause the imposition on Purchaser of Environmental Liabilities if such Environmental Condition or other matter were disclosed to Governmental Authorities. (17) As of the Effective Date Seller and as of the Closing Date is not currently operating nor is it required to be operating the Project under any compliance order, decree or similar agreement; any consent decree, order or similar agreement; and/or any corrective action decree, order or similar agreement issued by or entered into with any Governmental Authority under any Environmental Law. (18) Except as disclosed in any Phase I Environmental Site Assessment (or Phase II ESA) delivered to Purchaser, no Hazardous Materials have been dumped, landfilled, stored, located or disposed of on the Realty. Nevertheless, Purchaser acknowledges Seller’s use of customary building and office materials on the Project in compliance with Applicable Law. (19) To the best of Seller’s knowledge, there has not been in respect to the Project any emission (other than steam or water vapor) into the atmosphere or any discharge, direct or indirect, of any pollutants into the waters of the state where the Project is located or the United States of America other than domestic sewage discharged into a publicly owned treatment facility. (20) Seller shall provide Purchaser and its employees, representatives and agents with access to the Project and to Seller’s employees, agents and independent contractors, and shall make available for review and copying (if not otherwise required to be furnished to Purchaser as herein provided) warranties and guaranties directly relating to the Project, income and expense and operating data directly relating to the Project, licenses and permits directly relating to the Project, all fire, hazard, liability, and other insurance policies held by Seller with respect to the Project, all appraisals of the Project made within the last five years, engineer's or architect's studies or reports with respect to the Project, and any and all books, records, contracts, and any other documents or information directly relating to the Project. Seller makes no representations or warranties as to the accuracy of the information contained in any third party documents provided to Purchaser in accordance with this Section; provided, however, that Seller represents that all documents provided shall be true and correct copies of the same. To the extent that Seller is prohibited by law or agreement from providing Purchaser with any documentation that Seller is otherwise obligated to provide to Purchaser, Seller shall provide Purchaser with written notice briefly describing the nature of such documentation and the reason why the same may not be delivered to Purchaser. Seller shall nevertheless continue to make reasonable attempts to obtain such documentation and provide same to Purchaser. Seller shall cooperate and assist Purchaser in the inspection of such documents, items and information and in any other inspection by Purchaser provided for hereunder, provided that any such inspection shall be conducted during normal business hours or at such other time as is reasonable or necessary to conduct the inspection and shall not unreasonably interfere with the normal business operations of Seller, and shall be subject to the conditions set forth in Article 16 hereof. (21) From the Effective Date through the Closing Date, Seller shall promptly notify Purchaser of any material change with respect to the Project or any information heretofore or hereafter furnished to Purchaser with respect to the Project, including specifically, but without limitation, any change which would make any portion of this Agreement, including, without limitation, the representations, warranties, covenants and agreements contained in this Article 8 untrue or materially misleading. (22) Seller has good, marketable and indefeasible title in fee simple to the Project, free and clear of all restrictions, liens, leases, encumbrances, rights-of-way, easements, encroachments, exceptions, and other matters affecting title, except as disclosed in the initial Title Commitment. (23) No person, firm or entity, other than Purchaser, has any rights in or right to acquire the Project or any part thereof, and as long as this Agreement remains in force, Seller will not, without Purchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed), lease, transfer, mortgage, pledge, or convey its interest in the Project or any portion thereof nor any right therein, nor shall Seller enter into, or negotiate for the purpose of entering into, any agreement or amendment to agreement granting to any person or entity any right with respect to the Project or any part thereof. (24) Other than the exceptions disclosed in the Title Commitment, the Lease, the Property Agreements, and this Agreement, there are no leases, subleases, tenancy arrangements, service contracts, management agreements, or other agreements or instruments executed by or binding Seller which will be in force or effect on the Closing Date that grant to any person whomsoever or any entity whatsoever, any right, title, interest, or benefit in or to all or any part of the Project or any right relating to the use, operation, management, maintenance, or repair of all or any part of the Project. (25) Other than Seller, there are no parties in possession of any portion of the Project as lessees, tenants at sufferance, trespassers or otherwise. (26) There are no outstanding mechanic’s and materialmen’s liens or claims of creditors against the Project that have not been disclosed to Purchaser and will not be removed by Seller on or before the Closing Date or paid off through the closing of escrow. (27) Seller knows of no taxes, assessments or levies of any type whatsoever that can be imposed upon and collected from the Project, other than those set forth in the Title Commitment. Without in any way limiting the foregoing, no portion of the Project has, during Seller’s ownership of the same, been subject to assessments by any municipal utility district or any other or similar district authorized to impose taxes, charges, liens or assessments on the Project, except as set forth in the Title Commitment. (28) All utilities, including, without limitation, sanitary and storm sewer, electrical, gas, telephone, and water lines have been connected to or installed upon the Project, and, to the best of Seller’s knowledge, enter the Project from adjoining public rights-of-way or through private easements benefiting the Project, and the Project has access to a publicly dedicated and accepted thoroughfare. (29) To the best of Seller’s knowledge, the Improvements, including, but not limited to, the foundation, roof, walls, superstructure, plumbing, air conditioning and heating equipment, electrical wiring, boilers, and hot water heaters, are structurally sound, in good working order, and in a state of good repair, and suffer no damage from pest or termite infestation. (30) To the best of Seller’s knowledge, the Project does not lie within any area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers, the Federal Insurance Administration, the Department of Housing and Urban Development or any other governmental agency or body as being subject to the 100 year flood plain or any special flooding hazards or any wetlands designation, except as may be shown on the Survey. (31) A certificate or certificates of occupancy or the local equivalent have been obtained for the Improvements and all rentable space within the Improvements.
Appears in 1 contract
Representations Warranties Covenants and Agreements of Seller. To induce Purchaser to enter into this Agreement and to purchase the Project, Seller hereby represents and warrants to, and covenants and agrees with Purchaser, as follows, with the understanding and intention that Purchaser is relying upon the accuracy of such representations and warranties, and the agreement of Seller to comply with and perform such covenants and agreements, which representations, warranties, covenants and agreements shall be deemed (except as provided below) to be made by Seller to Purchaser as of the Effective Date and as of the Closing Date and thereafter (it being understood that such representations, warranties, covenants and agreements shall not be merged into the documents to be executed on the Closing Date but rather shall survive for the period set forth in Section 17.4 of this Agreement), and this Agreement is contingent upon and subject to the truth and accuracy of such representations and warranties, and the full and complete satisfaction of such covenants and agreements, and in the event such representations and warranties are not true and accurate as of Closing and any such covenants and agreements are not satisfied on or prior to Closing, Purchaser shall have the option of terminating this Agreement at any time prior to Closing, whereupon the Title Company shall promptly return the Xxxxxxx Money to Purchaser and all parties hereto shall be released from any and all liability hereunder except as set forth herein, or Purchaser may, at its sole option and discretion, waive in writing Seller’s 's satisfaction of any such representations, warranties, covenants or agreements and consummate the transaction contemplated hereby (it being understood and agreed by Seller and Purchaser that Seller shall remain liable during the survival period provided for in Section 17.4 hereof for all representations, warranties, covenants and agreements made by Seller in this Agreement and not expressly waived in writing by Purchaser as hereinabove provided):
(1) From the Effective Date until the Closing, Seller shall (i) maintain the Project in in, or, if necessary, restore the Project to, its present condition, subject to ordinary reasonable wear and tear, damage, casualty and condemnation; (ii) continue to operate the Project in a good, businesslike manner; and (iii) shall not modify or alter, in any material respect, any repair or maintenance programs or policies now in effect with respect to the Project, except as necessary to accommodate a Purchaser approved subtenant, if any.
(2) Seller has delivered to Purchaser copies of all insurance policies relating to the Project. Seller shall continue all such insurance policies in full force and effect through the Closing Date, and Seller shall neither cancel nor materially amend any of the same without Purchaser’s 's prior written consent, not to be unreasonably withheld.
(3) To best of Seller's Actual Knowledge, Seller has not received within the eighteen (18) consecutive months immediately preceding the Effective Date any notices or requests from any carrier of any insurance with respect to the Project, and Seller shall immediately deliver copies of any such notice or request to PurchaserPurchaser received after the Effective Date.
(4) To the best of Seller's Actual Knowledge, Seller has not received within the eighteen (18) consecutive months immediately preceding the Effective Date any written or oral notices or requests from any mortgagee, insurance company or Board of Fire underwriters, or any organization exercising functions similar thereto, requesting the performance of any work or alterations in respect to the Project which have not been performed.
(5) From the Effective Date through the Closing Date, Seller shall not enter into any new Property Agreements without the prior written consent of Purchaser unless such new Property Agreements are cancelable on or before the Closing Date or Seller agrees to remain liable for such Property Agreement as tenant under the Lease. The copies of the Property Agreements delivered to Purchaser hereunder are true, accurate and complete, and and, to the best of Seller's Actual Knowledge, Seller has received no notice and has no knowledge of any material, uncured breach or default by Seller or by any other party under the Property Agreements. Prior to the Closing Date, Seller shall comply with each and every material undertaking, covenant and obligation under the Property Agreements and the same shall not be materially modified, amended, terminated, renewed or otherwise altered without the prior written consent of Purchaser, which Purchaser consent shall not be unreasonably withheld.
(6) There is no actual or pending action, suit, claim, litigation, or proceeding by any entity, individual or governmental agency served upon Seller and affecting Seller or the Project which would in any way constitute a lien, claim or obligation of any kind against the Project, and to the best of Seller’s knowledge's Actual Knowledge, there is no such action, suit, claim, litigation or proceeding threatened.
(7) There are no pending condemnation or similar proceedings or assessments affecting the Project or any part thereof, nor to the best of Seller’s knowledge's Actual Knowledge, are any such assessments or proceedings contemplated by any Governmental Authority.
(8) No restrictive covenant or zoning (or its equivalent) classification (or, other Governmental Requirement) is materially violated by the present use and maintenance of the Project and appurtenant uses (including, without limitation, parking uses associated with the Project), and, to Seller’s best knowledge, there are no proceedings pending to change such zoning (or its equivalent) classification, and Seller shall not itself apply for or acquiesce in any such change.
(9) To the best of Seller's Actual Knowledge, Seller has not received within the eighteen (18) consecutive months immediately preceding the Effective Date any notice of any breach of any Governmental Requirement or restrictive covenant which remains uncured, and is not under any order of any Governmental Authority, with respect to the Project or the Seller’s 's present use and operation of the Project.
(10) The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party will not conflict with or result in the breach of any Governmental Requirement or of any agreement or instrument to which Seller is now a party or to which it is subject, or constitute a default thereunder, and does not require Seller to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties.
(11) Seller has all requisite power and authority to carry on Seller’s 's business as it is now being conducted and to enter into and perform this Agreement. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance or observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party have been duly authorized by all requisite action and are enforceable against Seller in accordance with their respective terms. The individual executing this Agreement on behalf of Seller is authorized to act for and on behalf of and to bind Seller in connection with this Agreement and in so doing to bind Seller to all of the terms and provisions hereof.
(12) The financial statements, reports, and other data relative to the Project heretofore furnished by Seller to Purchaser are (and all such statements, reports, information, and other data hereafter furnished by Seller to Purchaser will be) true and correct in all material respects, and fairly reflect the financial condition, the financial results or other subject matter thereof as of the dates thereof.
(13) All of the Personalty is and shall be owned by Seller on the Closing Date, free and clear of all liens, claims, encumbrances, and security interests, except as reflected in the Title Commitment or the UCC Report.
(14) There are no labor disputes, organizational campaigns or union contracts existing or under negotiation as of the Effective Date with respect to the Project for the construction, maintenance and operation thereof, and there are no employees or associates, either of Seller or any other employer engaged in the construction, operation and maintenance of the Project, to whom Purchaser shall, at or after the Closing Date, have any obligation whatsoever.
(15) Seller has maintained and does presently maintain in full force and effect all Environmental Permits necessary or required for the ownership and operation of the Project, and Seller has provided, or will provide, copies of all such Environmental Permits to Purchaser for its review.
(16) To the best of Seller’s knowledge, there is not and there There will not be as of the Closing Date exist any Environmental Condition on or at the Realty or any other matter on or connected with the Project that would cause the imposition on Purchaser of Environmental Liabilities if such Environmental Condition or other matter were disclosed to Governmental Authorities.
(17) As of the Effective Date Seller and as of the Closing Date Seller is not currently operating nor is it required to be operating the Project under any compliance order, decree or similar agreement; any consent decree, order or similar agreement; and/or any corrective action decree, order or similar agreement issued by or entered into with any Governmental Authority under any Environmental Law.
(18) Except as disclosed in any Phase I Environmental Site Assessment (or Phase II ESA) delivered to Purchaser, no Hazardous Materials have been dumped, landfilled, stored, located or disposed of on the Realty. Nevertheless, Purchaser acknowledges Seller’s use of customary building and office materials on the Project in compliance with Applicable Law.
(19) To the best of Seller’s knowledge's Actual Knowledge, there has not been in respect to the Project Project, within the eighteen (18) consecutive months immediately preceding the Effective Date, any emission (other than steam or water vapor) into the atmosphere or any discharge, direct or indirect, of any pollutants into the waters of the state where the Project is located State of Florida or the United States of America other than domestic sewage discharged into a publicly owned treatment facility.
(20) To the extent within Seller's possession or available to Seller, Seller shall provide Purchaser and its employees, representatives and agents with access to the Project and to Seller’s employees, agents and independent contractors, and shall make available for review and copying (if not otherwise required to be furnished to Purchaser as herein provided) ), warranties and guaranties directly relating to the Project, income and expense and operating data directly relating to the Project, licenses and permits directly relating to the Project, all fire, hazard, liability, and other insurance policies held by Seller with respect to the Project, all appraisals of the Project made within the last five years, engineer's or architect's studies or reports with respect to the Project, and any and all books, records, contracts, and any other documents or information directly relating to the Project. Seller makes no representations or warranties as to the accuracy of the information contained in any third party documents provided to Purchaser in accordance with this SectionSection 20; provided, however, that Seller represents that all documents provided shall be true and correct copies of the same. To the extent that Seller is prohibited by law or agreement from providing Purchaser with any documentation that Seller is otherwise obligated to provide to Purchaser, Seller shall provide Purchaser with written notice briefly describing the nature of such documentation and the reason why the same may not be delivered to Purchaser. Seller shall nevertheless continue to make reasonable attempts to obtain such documentation and provide same to Purchaser. Seller shall cooperate and assist Purchaser in the inspection of such documents, items and information and in any other inspection by Purchaser provided for hereunder, provided that any such inspection shall be conducted during normal business hours or at such other time as is reasonable or necessary to conduct the inspection and shall not unreasonably interfere with the normal business operations of Seller, and shall be subject to the conditions set forth in Article 16 hereof.
(21) From the Effective Date through the Closing Date, Seller shall promptly notify Purchaser of any material change with respect to the Project or any information heretofore or hereafter furnished to Purchaser with respect to the Project, including specifically, but without limitation, any change which would make any portion of this Agreement, including, without limitation, the representations, warranties, covenants and agreements contained in this Article 8 untrue or materially misleading.
(22) Seller has good, marketable and indefeasible title To the extent that Seller's representations and/or warranties in fee simple this Article 8 are limited to the Project, free and clear "Actual Knowledge" of all restrictions, liens, leases, encumbrances, rights-of-way, easements, encroachments, exceptions, and other matters affecting title, except as disclosed in the initial Title Commitment.
(23) No person, firm or entity, other than Purchaser, has any rights in or right to acquire the Project or any part thereof, and as long as this Agreement remains in forceparticular natural persons, Seller will notwarrants and represents that such persons are the most likely officers, without Purchaser’s prior written consent (directors and/or employees of Seller to be familiar with the matters to which consent shall not be unreasonably withheld or delayed), lease, transfer, mortgage, pledge, or convey its interest in the Project or any portion thereof nor any right therein, nor shall Seller enter into, or negotiate for the purpose of entering into, any agreement or amendment to agreement granting to any person or entity any right with respect to the Project or any part thereofrespective representation and/or warranty pertains.
(24) Other than the exceptions disclosed in the Title Commitment, the Lease, the Property Agreements, and this Agreement, there are no leases, subleases, tenancy arrangements, service contracts, management agreements, or other agreements or instruments executed by or binding Seller which will be in force or effect on the Closing Date that grant to any person whomsoever or any entity whatsoever, any right, title, interest, or benefit in or to all or any part of the Project or any right relating to the use, operation, management, maintenance, or repair of all or any part of the Project.
(25) Other than Seller, there are no parties in possession of any portion of the Project as lessees, tenants at sufferance, trespassers or otherwise.
(26) There are no outstanding mechanic’s and materialmen’s liens or claims of creditors against the Project that have not been disclosed to Purchaser and will not be removed by Seller on or before the Closing Date or paid off through the closing of escrow.
(27) Seller knows of no taxes, assessments or levies of any type whatsoever that can be imposed upon and collected from the Project, other than those set forth in the Title Commitment. Without in any way limiting the foregoing, no portion of the Project has, during Seller’s ownership of the same, been subject to assessments by any municipal utility district or any other or similar district authorized to impose taxes, charges, liens or assessments on the Project, except as set forth in the Title Commitment.
(28) All utilities, including, without limitation, sanitary and storm sewer, electrical, gas, telephone, and water lines have been connected to or installed upon the Project, and, to the best of Seller’s knowledge, enter the Project from adjoining public rights-of-way or through private easements benefiting the Project, and the Project has access to a publicly dedicated and accepted thoroughfare.
(29) To the best of Seller’s knowledge, the Improvements, including, but not limited to, the foundation, roof, walls, superstructure, plumbing, air conditioning and heating equipment, electrical wiring, boilers, and hot water heaters, are structurally sound, in good working order, and in a state of good repair, and suffer no damage from pest or termite infestation.
(30) To the best of Seller’s knowledge, the Project does not lie within any area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers, the Federal Insurance Administration, the Department of Housing and Urban Development or any other governmental agency or body as being subject to the 100 year flood plain or any special flooding hazards or any wetlands designation, except as may be shown on the Survey.
(31) A certificate or certificates of occupancy or the local equivalent have been obtained for the Improvements and all rentable space within the Improvements.
Appears in 1 contract
Representations Warranties Covenants and Agreements of Seller. To induce Purchaser to enter into this Agreement and to purchase the Project, Seller hereby represents and warrants to, and covenants and agrees with Purchaser, as follows, with the understanding and intention that Purchaser is relying upon the accuracy of such representations and warranties, and the agreement of Seller to comply with and perform such covenants and agreements, which representations, warranties, covenants and agreements shall be deemed (except as provided below) to be made by Seller to Purchaser as of the Effective Date and as of the Closing Date and thereafter (it being understood that such representations, warranties, covenants and agreements shall not be merged into the documents to be executed on the Closing Date but rather shall survive for the period set forth in Section 17.4 of this Agreement), and this Agreement is contingent upon and subject to the truth and accuracy of such representations and warranties, and the full and complete satisfaction of such covenants and agreements, and in the event such representations and warranties are not true and accurate as of Closing and any such covenants and agreements are not satisfied on or prior to Closing, Purchaser shall have the option of terminating this Agreement at any time prior to Closing, whereupon the Title Company shall promptly return the Xxxxxxx Money to Purchaser and all parties hereto shall be released from any and all liability hereunder except as set forth herein, or Purchaser may, at its sole option and discretion, waive in writing Seller’s satisfaction of any such representations, warranties, covenants or agreements and consummate the transaction contemplated hereby (it being understood and agreed by Seller and Purchaser that Seller shall remain liable during the survival period provided for in Section 17.4 hereof for all representations, warranties, covenants and agreements made by Seller in this Agreement and not expressly waived in writing by agree with Purchaser as hereinabove provided):follows:
(1) From the Effective Date until the Closing, Seller shall (i) maintain the Project in its present condition, subject to ordinary wear and tear, damage, casualty and condemnation; (ii) continue to operate the Project in a good, businesslike manner; and (iii) shall not modify or alter, in any material respect, any repair or maintenance programs or policies now in effect with respect to the Project.
(2a) Seller has delivered to Purchaser copies owns beneficially and of all insurance policies relating to record the Project. Seller shall continue all such insurance policies in full force and effect through the Closing Date, and Seller shall neither cancel nor amend any of the same without Purchaser’s prior written consent.
(3) Seller has not received any notices or requests from any carrier of any insurance with respect to the Project, and Seller shall immediately deliver copies of any such notice or request to Purchaser.
(4) Seller has not received any written or oral notices or requests from any mortgagee, insurance company or Board of Fire underwriters, or any organization exercising functions similar thereto, requesting the performance of any work or alterations in respect to the Project which have not been performed.
(5) From the Effective Date through the Closing Date, Seller shall not enter into any new Property Agreements without the prior written consent of Purchaser unless such new Property Agreements are cancelable on or before the Closing Date or Seller agrees to remain liable for such Property Agreement under the Lease. The copies of the Property Agreements delivered to Purchaser hereunder are true, accurate and complete, and Seller has received no notice and has no knowledge of any material, uncured breach or default by Seller or by any other party under the Property Agreements. Prior to the Closing Date, Seller shall comply with each and every material undertaking, covenant and obligation under the Property Agreements and the same shall not be materially modified, amended, terminated, renewed or otherwise altered without the prior written consent of Purchaser.
(6) There is no pending action, suit, claim, litigation, or proceeding by any entity, individual or governmental agency served upon Seller and affecting Seller or the Project which would in any way constitute a lien, claim or obligation of any kind against the Project, and to the best of Seller’s knowledge, there is no such action, suit, claim, litigation or proceeding threatened.
(7) There are no pending condemnation or similar proceedings or assessments affecting the Project or any part thereof, nor to the best of Seller’s knowledge, are any such assessments or proceedings contemplated by any Governmental Authority.
(8) No restrictive covenant or zoning (or its equivalent) classification (or, other Governmental Requirement) is materially violated by the present use and maintenance of the Project and appurtenant uses (including, without limitation, parking uses associated with the Project), and, to Seller’s best knowledge, there are no proceedings pending to change such zoning (or its equivalent) classification, and Seller shall not itself apply for or acquiesce in any such change.
(9) Seller has not received any notice of any breach of any Governmental Requirement or restrictive covenant which remains uncured, and is not under any order of any Governmental Authority, with respect to the Project or the Seller’s present use and operation of the Project.
(10) The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party will not conflict with or result in the breach of any Governmental Requirement or of any agreement or instrument to which Seller is now a party or to which it is subject, or constitute a default thereunder, and does not require Seller to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties.
(11) Seller has all requisite power and authority to carry on Seller’s business as it is now Shares being conducted and to enter into and perform this Agreement. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance or observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party have been duly authorized by all requisite action and are enforceable against Seller in accordance with their respective terms. The individual executing this Agreement on behalf of Seller is authorized to act for and on behalf of and to bind Seller in connection with this Agreement and in so doing to bind Seller to all of the terms and provisions hereof.
(12) The financial statements, reports, and other data relative to the Project heretofore furnished by Seller to Purchaser are (and all such statements, reports, information, and other data hereafter furnished by Seller to Purchaser will be) true and correct in all material respects, and fairly reflect the financial condition, the financial results or other subject matter thereof as of the dates thereof.
(13) All of the Personalty is and shall be owned by Seller on the Closing Datesold hereby, free and clear of all any liens, claims, charges, options or encumbrances, and security interests, except as reflected in has full power and authority to transfer the Title Commitment or the UCC Report.
(14) There are no labor disputes, organizational campaigns or union contracts existing or under negotiation as of the Effective Date with respect to the Project for the construction, maintenance and operation thereof, and there are no employees or associates, either of Seller or any other employer engaged in the construction, operation and maintenance of the Project, to whom Purchaser shall, at or after the Closing Date, have any obligation whatsoever.
(15) Seller has maintained and does presently maintain in full force and effect all Environmental Permits necessary or required for the ownership and operation of the Project, and Seller has provided, or will provide, copies of all such Environmental Permits to Purchaser for its review.
(16) To the best of Seller’s knowledge, there is not and there will not be as of the Closing Date exist any Environmental Condition on or at the Realty or any other matter on or connected with the Project that would cause the imposition on Purchaser of Environmental Liabilities if such Environmental Condition or other matter were disclosed to Governmental Authorities.
(17) As of the Effective Date Seller and as of the Closing Date is not currently operating nor is it required to be operating the Project under any compliance order, decree or similar agreement; any consent decree, order or similar agreement; and/or any corrective action decree, order or similar agreement issued by or entered into with any Governmental Authority under any Environmental Law.
(18) Except as disclosed in any Phase I Environmental Site Assessment (or Phase II ESA) delivered to Purchaser, no Hazardous Materials have been dumped, landfilled, stored, located or disposed of on the Realty. Nevertheless, Purchaser acknowledges Seller’s use of customary building and office materials on the Project in compliance with Applicable Law.
(19) To the best of Seller’s knowledge, there has not been in respect to the Project any emission (other than steam or water vapor) into the atmosphere or any discharge, direct or indirect, of any pollutants into the waters of the state where the Project is located or the United States of America other than domestic sewage discharged into a publicly owned treatment facility.
(20) Seller shall provide Purchaser and its employees, representatives and agents with access to the Project and to Seller’s employees, agents and independent contractors, and shall make available for review and copying (if not otherwise required to be furnished to Purchaser as herein provided) warranties and guaranties directly relating to the Project, income and expense and operating data directly relating to the Project, licenses and permits directly relating to the Project, all fire, hazard, liability, and other insurance policies held by Seller with respect to the Project, all appraisals of the Project made within the last five years, engineer's or architect's studies or reports with respect to the Project, and any and all books, records, contracts, and any other documents or information directly relating to the Project. Seller makes no representations or warranties as to the accuracy of the information contained in any third party documents provided Shares to Purchaser in accordance with this Section; provided, however, that Seller represents that all documents provided shall be true and correct copies of the same. To the extent that Seller is prohibited by law or agreement from providing Purchaser with any documentation that Seller is otherwise obligated to provide to Purchaser, Seller shall provide Purchaser with written notice briefly describing the nature of such documentation and the reason why the same may not be delivered to Purchaser. Seller shall nevertheless continue to make reasonable attempts to obtain such documentation and provide same to Purchaser. Seller shall cooperate and assist Purchaser in the inspection of such documents, items and information and in any other inspection by Purchaser provided for hereunder, provided that any such inspection shall be conducted during normal business hours or at such other time as is reasonable or necessary to conduct the inspection and shall not unreasonably interfere with the normal business operations of Seller, and shall be subject to the conditions set forth in Article 16 hereof.
(21) From the Effective Date through the Closing Date, Seller shall promptly notify Purchaser of any material change with respect to the Project or any information heretofore or hereafter furnished to Purchaser with respect to the Project, including specifically, but without limitation, any change which would make any portion terms of this Agreement, including, without limitation, ; the representations, warranties, covenants sale and agreements contained delivery by Seller of certificates representing the Shares vests full legal and beneficial title thereto in this Article 8 untrue or materially misleading.
(22) Seller has good, marketable and indefeasible title in fee simple to the Project, Purchaser free and clear of all restrictions, any liens, leasesclaims, charges, or encumbrances. The Shares are duly authorized, rights-of-wayvalidly issued, easements, encroachments, exceptions, fully paid and other matters affecting title, except as disclosed in nonassessable and constitute forty nine percent (49%) of the initial Title Commitmentissued and outstanding capital stock of the Corporation.
(23) No person, firm or entity, other than Purchaser, has any rights in or right to acquire the Project or any part thereof, and as long as this Agreement remains in force, Seller will not, without Purchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed), lease, transfer, mortgage, pledge, or convey its interest in the Project or any portion thereof nor any right therein, nor shall Seller enter into, or negotiate for the purpose of entering into, any agreement or amendment to agreement granting to any person or entity any right with respect to the Project or any part thereof.
(24) Other than the exceptions disclosed in the Title Commitment, the Lease, the Property Agreements, and this Agreement, there are no leases, subleases, tenancy arrangements, service contracts, management agreements, or other agreements or instruments executed by or binding Seller which will be in force or effect on the Closing Date that grant to any person whomsoever or any entity whatsoever, any right, title, interest, or benefit in or to all or any part of the Project or any right relating to the use, operation, management, maintenance, or repair of all or any part of the Project.
(25) Other than Seller, there are no parties in possession of any portion of the Project as lessees, tenants at sufferance, trespassers or otherwise.
(26b) There are no outstanding mechanic’s and materialmen’s liens or claims of creditors against the Project that have not been disclosed to Purchaser and will not be removed by Seller on or before the Closing Date or paid off through the closing of escrow.
(27) Seller knows of no taxes, assessments or levies of any type whatsoever that can be imposed upon and collected from the Project, other than those set forth in the Title Commitment. Without in any way limiting the foregoing, no portion of the Project has, during Seller’s ownership of the same, been subject to assessments by any municipal utility district or any other or similar district authorized to impose taxes, charges, liens or assessments on the Project, except as set forth in the Title Commitment.
(28) All utilities, including, without limitation, sanitary and storm sewer, electrical, gas, telephone, and water lines have been connected to or installed upon the Project, andare, to the best of Seller’s knowledge, enter the Project from adjoining public rights-of-way no actions, suits, claims, or through private easements benefiting the Projectproceedings pending, and the Project has access or known to a publicly dedicated and accepted thoroughfare.
(29) To the best of be threatened, against Seller’s knowledge, the Improvements, including, but not limited to, the foundation, roof, walls, superstructure, plumbing, air conditioning and heating equipment, electrical wiring, boilers, and hot water heaters, are structurally sound, in good working orderlaw or in equity, and in a state of good repairor before any federal, and suffer no damage from pest state, municipal or termite infestation.
(30) To the best of Seller’s knowledge, the Project does not lie within any area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers, the Federal Insurance Administration, the Department of Housing and Urban Development or any other governmental agency or body as being subject to instrumentality, domestic or foreign which would impact in any material way the 100 year flood plain or any special flooding hazards or any wetlands designation, except as may be shown on the Surveyobligations of Seller hereunder.
(31c) A No representation or warranty by Seller contained in this Agreement nor any written representation, statement or certificate made or certificates furnished, by Seller pursuant hereto or in connection with the transactions contemplated hereby, contains any material error or misstatement or omits to state any material fact necessary to make the representations or statements contained herein or therein are not misleading.
(d) This Agreement and the documents and instruments executed and delivered by Seller in connection with the transactions contemplated hereby, constitute the valid, legal and binding obligations of occupancy or the local equivalent have been obtained for the Improvements and all rentable space within the ImprovementsSeller, enforceable in accordance with their terms.
Appears in 1 contract
Representations Warranties Covenants and Agreements of Seller. To induce Purchaser to enter into this Agreement and to purchase the Project, Seller hereby represents and warrants to, and covenants and agrees with Purchaser, as followsthe following, with the understanding and intention that Purchaser is relying upon the accuracy of such representations and warranties, and the agreement of Seller to comply with and perform such covenants and agreements, which representations, warranties, covenants and agreements shall be deemed (except as provided below) to be made by Seller to Purchaser as of the Effective Date and as of the Closing Date and thereafter (it being understood that such representations, warranties, covenants and agreements shall not be merged into the documents to be executed on the Closing Date but rather shall survive for the period set forth in Section 17.4 19.5 of this Agreement), and this Agreement is contingent upon and subject to the truth and accuracy of such representations and warranties, and the full and complete satisfaction of such covenants and agreements, and in the event such representations and warranties are not true and accurate as of Closing and any such covenants and agreements are not satisfied on or prior to Closing, Purchaser shall have the option of terminating this Agreement at any time prior to Closing, whereupon the Title Company shall promptly return the Xxxxxxx Money Earxxxx Xxney to Purchaser and all parties hereto shall be released from any and all liability hereunder except as set forth herein, or Purchaser may, at its sole option and discretion, waive in writing Seller’s 's satisfaction of any such representations, warranties, covenants or agreements and consummate the transaction contemplated hereby (it being understood and agreed by Seller and Purchaser that Seller shall remain liable during the survival period provided for in Section 17.4 19.5 hereof for all representations, warranties, covenants and agreements made by Seller in this Agreement and not expressly waived in writing by Purchaser as hereinabove provided):
(1) Seller has delivered to Purchaser complete, true, and correct copies of the I/O Master Lease and the Leases and all amendments and modifications thereto, and there are no other leases, licenses or similar agreements affecting the Project.
(2) With respect to the I/O Master Lease: (i) there are no other promises, amendments, agreements or commitments between Tenants, I/O, Seller, a predecessor in title to the Project, or any one acting by or on behalf of Seller, or any combination thereof, nor are there any commitments binding upon Seller relating to the Project which are described in the I/O Master Lease other than as expressly set forth therein; (ii) the I/O Master Lease is in full force and effect; (iii) there is no uncured breach or default under the I/O Master Lease, and no offset, defense, abatement, or
(3) From the Effective Date until the Closing, Seller shall (i) maintain the Project in its present condition, subject to ordinary reasonable wear and tear, damage, casualty and condemnation; , (ii) continue to operate the Project in a good, businesslike manner; and , (iii) shall make no change or modification in the I/O Master Lease, the building rules or any presently existing rental policies or rental agreements without, in each instance, the prior written approval of Purchaser, (iv) comply with and fully perform, keep and observe each and every material term, provision, condition, undertaking, covenant and obligation under the I/O Master Lease, and agrees not to modify or alter, amend any of same in any material respect, any repair or maintenance programs or policies now in effect with respect to without the Projectprior written approval of Purchaser.
(24) Seller or I/O has delivered to Purchaser copies of all insurance policies relating to the Project. Seller or I/O shall continue maintain all such insurance policies in full force and effect through the Closing Date, and neither Seller nor I/O shall neither cancel nor amend (nor allow the cancellation or amendment, as applicable) any of the same without Purchaser’s 's prior written consent.
(35) Seller has not received received, and has no Knowledge of, any written notices or requests from any carrier of any insurance with respect to the Project, and Seller shall immediately deliver copies of any such notice or request to Purchaser.
(4) Seller has not received any written or oral notices or requests from any mortgagee, insurance company or Board of Fire underwritersUnderwriters, or any organization exercising functions similar thereto, requesting the performance of any work or alterations in respect to the Project which have Project, and has not been performedreceived and has no Knowledge of any such non-written notices or requests.
(56) From Except as may be set forth on Schedule 2.3(a) or Schedule 2.3(b), as applicable, all of the Effective Date through Permits and Property Agreements are in full force and effect and are freely transferable to Purchaser without cost (or, if there is a cost, it is set forth in on Schedule 2.3(a) or Schedule 2.3(b), as applicable). Except as set forth on Schedule 2.3(a), there are no Property
(7) Through the time of Closing, Seller shall fully perform and observe all material requirements of all other contracts and agreements affecting the Project, including, without limitation, any deed of trust or mortgage encumbering the Project or any portion thereof.
(8) On the Closing Date, Seller shall not enter into have good and indefeasible title in fee simple to the Project, free and clear of all restrictions, liens, leases, encumbrances, rights of entry or reverter, rights-of-way, easements, encroachments, exceptions, and other matters affecting title, except for the Permitted Exceptions.
(9) No Person, other than Purchaser, I/O under the I/O Master Lease and Tenants under the Leases, has any new Property Agreements rights in or right to acquire the Project or any part thereof, and as long as this Agreement remains in force, Seller will not, without the Purchaser's prior written consent consent, lease, transfer, mortgage, pledge, or convey its interest in the Project or any portion thereof nor any right therein, nor shall Seller enter into, or negotiate for the purpose of entering into, any agreement or amendment to agreement granting to any Person any right with respect to the Project or any part thereof.
(10) Other than the Permitted Exceptions, the I/O Master Lease (which shall be terminated at Closing), the Leases, the Property Agreements, and this Agreement, there are no leases, subleases, tenancy arrangements, service contracts, management agreements, or other agreements or instruments which will be in force or effect on the Closing Date that grant to any Person, any right, title, interest, or benefit in or to all or any part of the Project or any right relating to the use, operation, management, maintenance, or repair of all or any part of the Project.
(11) There are no parties in possession of any portion of the Project as lessees, tenants at sufferance, trespassers or otherwise, except for I/O under the I/O Master Lease and Tenants under the Leases.
(12) There are no outstanding mechanic's and materialmen's liens or claims of creditors against the Project that have not been disclosed to Purchaser unless such new Property Agreements are cancelable and will not be removed by -13- 18 Seller on or before the Closing Date.
(13) There are no taxes, assessments or levies of any type whatsoever that can be imposed upon and collected from the Project arising out of or in connection with the ownership and operation of the Project, or any public improvements in the general vicinity of the Project, other than rent taxes, income taxes, business taxes, franchise taxes, and ad valorem taxes on the Realty for the calendar year in which the Closing Date occurs payable to the State of Texas, County of Fort Bend, the school district in which the Project is situated, and the City of Staxxxxx, xnd levies and assessments, if any, provided for in the Permitted Exceptions. Without in any way limiting the foregoing, no portion of the Project has, during Seller's ownership of the same, been subject to assessments by any municipal utility district or Seller agrees any other or similar district authorized to remain liable for such Property Agreement impose taxes, charges, liens or assessments on the Project, except as set forth in the Permitted Exceptions.
(14) All utilities and other services required to be furnished to the Project, if any, under the Lease. The copies I/O Master Lease or the Leases will be furnished prior to and as of the Property Agreements delivered to Purchaser hereunder are true, accurate and complete, and Seller has received no notice and has no knowledge of any material, uncured breach or default by Seller or by any other party under the Property Agreements. Prior to the Closing Date, Seller shall comply with each and every material undertaking, covenant and obligation under the Property Agreements and the same shall not be materially modified, amended, terminated, renewed or otherwise altered without the prior written consent of Purchaser.
(615) All utilities, including, without limitation, sanitary and storm sewer, electrical, gas, telephone, and water lines have been connected to or installed upon the Project, and enter the Project from adjoining public rights-of-way or through private easements benefitting the Project, and the Project has access to a publicly dedicated and accepted thoroughfare.
(16) To Seller's Knowledge, the Improvements, including, but not limited to, the roof, foundation, walls, superstructure, plumbing, air conditioning and heating equipment, electrical wiring, boilers, and hot water heaters are structurally sound, in good working order, and in a state of good repair, and suffer no damage from pest or termite infestation.
(17) There is no actual, pending or threatened action, suit, claim, litigation, or proceeding by any entity, individual or governmental agency served upon Seller and affecting Seller or the Project which would in any way constitute a lien, claim or obligation of any kind against the Project, and to the best of Seller’s knowledge's Knowledge, there is no such action, suit, claim, litigation or proceeding threatenedcontemplated.
(718) There To Seller's Knowledge, there are no pending or threatened condemnation or similar proceedings or assessments affecting the Project or any part thereof, nor to the best Knowledge of Seller’s knowledge, are any such assessments or proceedings contemplated by any Governmental Authority.
(8) No 19) To Seller's Knowledge, no restrictive covenant or zoning (or its equivalent) classification (or, other Governmental RequirementRequirements) is materially violated by the present use and maintenance of the Project and appurtenant uses (including, without limitation, parking uses associated with the Project), and, to Seller’s best knowledge, there are no proceedings pending to change such zoning (or its equivalent) classification, and Seller shall not itself apply for or acquiesce in any such change.
(920) Seller has not received any notice of any breach of any Governmental Requirement Requirements or restrictive covenant which remains uncuredcovenant, and is not under any order of any Governmental Authority, with respect to the Project or the Seller’s present use and operation of the Project.,
(1021) The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party will not conflict with or result in the breach of any Governmental Requirement Requirements or of any agreement or instrument to which Seller is now a party or to which it is subject, or constitute a default thereunder, and does not require Seller to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties.
(1122) Seller is a corporation, duly organized under the laws of the State of Delaware, and has all requisite power and authority to carry on Seller’s 's business as it is now being conducted and to enter into and perform this Agreement. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance or observance of the obligations of Seller hereunder and under any and all other agreements and instruments herein mentioned to which Seller is a party have been duly authorized by all requisite action and are enforceable against Seller in accordance with their respective terms. The individual executing this Agreement on behalf of Seller is authorized to act for and on behalf of and to bind Seller in connection with this Agreement and in so doing to bind Seller to all of the terms and provisions hereof.
(1223) The financial statements, reports, and other data relative to the Project Seller heretofore furnished by Seller to Purchaser are (and all such statements, reports, information, and other data hereafter furnished by Seller to Purchaser will be) true and correct in all material respects, and fairly reflect the financial condition, the financial results or other subject matter thereof as of the dates thereof.
(1324) All A certificate or certificates of the Personalty is and shall be owned by Seller on the Closing Date, free and clear of all liens, claims, encumbrances, and security interests, except as reflected in the Title Commitment occupancy or the UCC Reportlocal equivalent, if any have been obtained for the Improvements and all rentable space within the Improvements, if required or issued by any governmental authorities.
(1425) There are no labor disputes, organizational campaigns Seller or union contracts existing or under negotiation as of the Effective Date with respect I/O pursuant to the Project for the construction, maintenance and operation thereof, and there are no employees or associates, either of Seller or any other employer engaged in the construction, operation and maintenance of the Project, to whom Purchaser shall, at or after the Closing Date, I/O Master Lease have any obligation whatsoever.
(15) Seller has maintained and does do presently maintain in full force and effect all Environmental Permits Permits, if any, necessary or required for the ownership and operation of the Project, and Seller has provided, or will provide, provided copies of all such Environmental Permits to Purchaser for its review.
(1626) To the best of Seller’s knowledge's Knowledge, there is not and there will not be as of the Closing Date exist any Environmental Condition on or at the Realty or any other matter on or connected with the Project that would cause the imposition on Purchaser of Environmental Liabilities if such Environmental Condition or other matter were disclosed to Governmental Authorities.
(1727) As To Seller's Knowledge, as of the Effective Date Seller and as of the Closing Date neither Seller nor I/O is not currently operating nor is it required to be operating the Project under any compliance order, decree or similar agreement; any consent decree, order or similar agreement; and/or any corrective action decree, order or similar agreement issued by or entered into with any Governmental Authority under any Environmental Law.Governmental
(1828) Except as disclosed in any Phase I Environmental Site Assessment (or Phase II ESA) delivered to PurchaserTo Seller's Knowledge, no Hazardous Materials have been dumped, landfilled, stored, located or disposed of on the Realty in violation of applicable Environmental Laws during the timx Xxxxxx xxs owned the Realty. Nevertheless, Purchaser acknowledges Seller’s use of customary building and office materials on the Project in compliance with Applicable Law.
(1929) To the best of Seller’s knowledge's Knowledge, there has not been been, in respect to the Project any emission (other than steam or water vapor) into the atmosphere or any discharge, direct or indirect, of any pollutants into the waters of the state where the Project is located State of Texas or the United States of America other than domestic sewage discharged into a publicly in violation of applicable Environmental Laws during the timx Xxxxxx xxs owned treatment facilitythe Realty.
(20) Seller shall provide Purchaser and its employees, representatives and agents with access to the Project and to Seller’s employees, agents and independent contractors, and shall make available for review and copying (if not otherwise required to be furnished to Purchaser as herein provided) warranties and guaranties directly relating to the Project, income and expense and operating data directly relating to the Project, licenses and permits directly relating to the Project, all fire, hazard, liability, and other insurance policies held by Seller with respect to the Project, all appraisals of the Project made within the last five years, engineer's or architect's studies or reports with respect to the Project, and any and all books, records, contracts, and any other documents or information directly relating to the Project. Seller makes no representations or warranties as to the accuracy of the information contained in any third party documents provided to Purchaser in accordance with this Section; provided, however, that Seller represents that all documents provided shall be true and correct copies of the same. To the extent that Seller is prohibited by law or agreement from providing Purchaser with any documentation that Seller is otherwise obligated to provide to Purchaser, Seller shall provide Purchaser with written notice briefly describing the nature of such documentation and the reason why the same may not be delivered to Purchaser. Seller shall nevertheless continue to make reasonable attempts to obtain such documentation and provide same to Purchaser. Seller shall cooperate and assist Purchaser in the inspection of such documents, items and information and in any other inspection by Purchaser provided for hereunder, provided that any such inspection shall be conducted during normal business hours or at such other time as is reasonable or necessary to conduct the inspection and shall not unreasonably interfere with the normal business operations of Seller, and shall be subject to the conditions set forth in Article 16 hereof.
(2130) From the Effective Date through the Closing Date, Seller shall promptly notify Purchaser of any material change with respect to the Project or any information heretofore or hereafter furnished to the Purchaser with respect to the Project, including specifically, but without limitation, and of any such change which would make any portion of this Agreement, including, without limitationbut not limited to, the representations, warranties, covenants covenants, and agreements contained in this Article 8 9 untrue or materially misleading.
(2231) Seller has goodTo Seller's Knowledge, marketable and indefeasible title in fee simple to the ProjectProject meets all applicable zoning, free and clear of all restrictions, liens, leases, encumbrances, rights-of-way, easements, encroachments, exceptionsif any, and other matters affecting titlesimilar or equivalent Governmental Requirements (and that all other governmental and private restrictions such as density, except parking area ratio, floor area ratio, light and air limitations and deed and easement restrictions have been complied with) so as disclosed to permit the operation thereon of the types of businesses contemplated in the initial Title Commitment.
(23) No person, firm or entity, other than Purchaser, has any rights in or right to acquire the Project or any part thereof, and as long as this Agreement remains in force, Seller will not, without Purchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed), lease, transfer, mortgage, pledge, or convey its interest in the Project or any portion thereof nor any right therein, nor shall Seller enter into, or negotiate for the purpose of entering into, any agreement or amendment to agreement granting to any person or entity any right with respect to the Project or any part thereof.
(24) Other than the exceptions disclosed in the Title Commitment, the Lease, the Property Agreements, and this Agreement, there are no leases, subleases, tenancy arrangements, service contracts, management agreements, or other agreements or instruments executed by or binding Seller which will be in force or effect on the Closing Date that grant to any person whomsoever or any entity whatsoever, any right, title, interest, or benefit in or to all or any part of the Project or any right relating to the use, operation, management, maintenance, or repair of all or any part of the Project.
(25) Other than Seller, there are no parties in possession of any portion of the Project as lessees, tenants at sufferance, trespassers or otherwise.
(26) There are no outstanding mechanic’s and materialmen’s liens or claims of creditors against the Project that have not been disclosed to Purchaser and will not be removed by Seller on or before the Closing Date or paid off through the closing of escrow.
(27) Seller knows of no taxes, assessments or levies of any type whatsoever that can be imposed upon and collected from the Project, other than those set forth in the Title Commitment. Without in any way limiting the foregoing, no portion of the Project has, during Seller’s ownership of the same, been subject to assessments by any municipal utility district or any other or similar district authorized to impose taxes, charges, liens or assessments on the Project, except as set forth in the Title Commitment.
(28) All utilities, including, without limitation, sanitary and storm sewer, electrical, gas, telephone, and water lines have been connected to or installed upon the Project, and, to the best of Seller’s knowledge, enter the Project from adjoining public rights-of-way or through private easements benefiting the Project, I/O Master Lease and the Project has access to a publicly dedicated and accepted thoroughfareLeases.
(29) To the best of Seller’s knowledge, the Improvements, including, but not limited to, the foundation, roof, walls, superstructure, plumbing, air conditioning and heating equipment, electrical wiring, boilers, and hot water heaters, are structurally sound, in good working order, and in a state of good repair, and suffer no damage from pest or termite infestation.
(30) To the best of Seller’s knowledge, the Project does not lie within any area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers, the Federal Insurance Administration, the Department of Housing and Urban Development or any other governmental agency or body as being subject to the 100 year flood plain or any special flooding hazards or any wetlands designation, except as may be shown on the Survey.
(31) A certificate or certificates of occupancy or the local equivalent have been obtained for the Improvements and all rentable space within the Improvements.
Appears in 1 contract
