Sellers and Purchasers Representations. (a) The representations set forth in this Section 3.05(a) and in Section 7.04 constitute the only representations of Seller to Purchaser in connection with the sale of the Property. Seller represents to Purchaser as of the date hereof as follows: (i) Seller is a New York general partnership, duly formed and validly existing and in good standing under the laws of the State of New York. (ii) Seller has the authorization and power to execute and deliver this Agreement and to consummate the Closing contemplated hereby. Any required consents from third parties to Seller's execution and delivery of this Agreement have been obtained, except for the consent of General Electric Capital Corporation to the release of the Mortgage (as defined in Section 3.09) from the Property which Seller agrees to use reasonable efforts to obtain, and if Seller is unable to obtain such consent prior to the Closing Date, Purchaser or Seller may terminate this Agreement and Seller shall reimburse Purchaser for its reasonable, actual third-party out-of-pocket costs and expenses in conducting its due diligence but in no event to exceed $250,000 in the aggregate. Except as provided in the foregoing sentence, the execution and delivery of this Agreement and the consummation of the transactions contemplated herein by Seller will not violate Seller's documents of formation or any other agreement, judicial decree, statute or regulation to which Seller is a party or by which it is bound. (iii) Seller is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization. (iv) The documents listed in Exhibit D include all Leases of the Property which are in effect on the date hereof. Seller has delivered to Purchaser copies of all such Leases and such copies are true, accurate and complete. The documents listed in Exhibit D include all Contracts relating to the Property in effect on the date hereof. Seller has delivered to Purchaser copies of all such Contracts and such copies are true, accurate and complete. (v) On the Closing Date, there will be no Contracts affecting the Property except (A) the Contracts listed in Exhibit D and any New Contracts, (B) the Leases listed in Exhibit D and any New Leases, and (C) any agreements delivered by Seller to Purchaser prior to the Closing Date which have been approved in writing by Purchaser. (vi) Seller has not received any written notice or citation (a "Notice"): (A) From any federal, state, county or municipal authority alleging a violation of any fire, health, safety, building pollution, environmental (including, without limitation, relating to any Hazardous Substances), zoning law, regulation, permit, order or directive in respect of the Property or any part thereof, which relates to a violation which would cost more than $5,000 to correct which has not been corrected; (B) From any insurance company of any material defects or inadequacies in the Property or any part thereof, which would materially, adversely affect the insurability of the same or of any termination or threatened termination of any policy of insurance; or (C) From any governmental authority with respect to a proposed eminent domain taking of all or any portion of the Property. If any such Notice is received by Seller prior to Closing, Seller shall notify Purchaser promptly thereof and provide a copy of such Notice to Purchaser. (vii) Seller has not received any notice of the pendency of any litigation or judicial or administrative proceeding affecting Seller or the Property which is not covered by insurance and which claims damages in excess of $100,000. Seller has not with respect to the Property suffered or confessed any judgment in or before any such court, commission, agency or other administrative authority against which remains unsatisfied. (viii) Seller does not directly employ any employees who work at the Property. (ix) Except as set forth in Exhibit "E' hereto, Seller has not granted to any person the right to receive any leasing commission in connection with the extension or renewal of any Lease or in connection with the exercise by any Tenant of any expansion or extension option contained in any Lease. Neither Seller nor the Property is subject to any "protection list" or similar obligation with respect to the future leasing of the property. Except as set forth in Exhibit "F" hereto, no Tenant is delinquent in payment of any rent owed under its Lease for more than thirty (30) days. (x) Seller is not a party to any construction contracts for material tenant improvements to the Property or any portion thereof other than Contracts included in Exhibit D annexed hereto, and not more than $500,000 in the aggregate remains unpaid under said Contracts. (xi) No portion of the Property is subject to any real property or other tax abatement, reduction or phase-in program or agreement. There are no tax certiorari or tax reduction proceedings currently pending in respect of the Property except as set forth in Exhibit I. (xii) Attached hereto as Exhibit G is a rent roll of the Property which is true and complete in all material respects as of the date thereof. Except as set forth on Exhibit G hereto, (a) no rent has been paid by any Tenant more than thirty (30) days in advance, (b) to the best of Seller's knowledge, neither any Tenant nor Seller is in default in the performance of any material covenant, agreement or condition contained in any of the Leases, (c) Seller has not received written notice from any Tenant regarding pending or threatened offsets against rent or for any other monetary or material claim against Seller which has not been cured and no future rent concessions have been created which are not disclosed in the Leases, and (d) to the best of Seller's knowledge, except as provided in this Agreement with respect to any New Lease, any and all construction or improvements that were required to be performed by Seller under any Lease prior to the date hereof have been fully completed and accepted by each Tenant and all leasing commissions payable on account of any of the Leases have been fully paid, except those which may become due in connection with the exercise by any Tenant of any expansion or extension option contained in any of the Leases. (xiii) To the best of Seller's knowledge, all governmental approvals required for the current use of the Property have been issued and are currently in effect without violation, the Property is not under investigation for failure to comply in any material respect with any statutes, laws, ordinances, rules, regulations, orders or directives of any and all governmental agencies pertaining to the use or occupancy of the Property, and the Property is in material compliance with, and not in violation of, any applicable statutes, laws, ordinances, rules, regulations, orders or directives; provided, however, that Seller makes no representation herein with respect to compliance with the Americans with Disabilities Act or any rule, regulation or interpretation promulgated thereunder. (xiv) To the best of Seller's knowledge, there are no Hazardous Substances at the Property except for ordinary cleaning, landscaping, maintenance, and office supplies which are used and stored in compliance with applicable laws, and Seller has not previously used, manufactured. generated, treated, stored, disposed of, or released any Hazardous Substances on or under the Property or transported any Hazardous Substances over the Property. (xv) There has been no sale by Seller of any of the development rights or air rights relating to or forming a part of the Property. (b) Purchaser represents and warrants that: (i) Purchaser is a corporation, duly formed, validly existing and in good standing under the laws of the State of Nevada. (ii) Purchaser has the authorization and power to execute and deliver this Agreement and will on the Closing Date have the authorization and power to consummate the Closing. Any required consents from third parties to Purchaser's execution and delivery of this Agreement have been obtained. The execution and delivery of this Agreement do not, and, assuming due authorization of Purchaser, the consummation of the transactions contemplated herein by Purchaser will not, violate Purchaser's documents of formation or any other agreement, judicial decree, statute or regulation to which Purchaser is a party or by which it is bound. (iii) Purchaser is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cornerstone Properties Inc)
Sellers and Purchasers Representations. (a) The representations set forth in this Section 3.05(a) and in Section 7.04 constitute the only representations of Seller to Purchaser in connection with the sale of the Property. Seller represents to Purchaser as of the date hereof as follows:
(i) Seller IPA is a New York general partnershiplimited partnership duly organized, duly formed and validly existing and in good standing under the laws of the State of New York.
(ii) Seller IPA has the authorization all requisite power and power authority to execute enter into and deliver this Agreement and to consummate the Closing contemplated hereby. Any required consents from third parties to Seller's execution and delivery of this Agreement have been obtained, except for the consent of General Electric Capital Corporation to the release of the Mortgage (as defined in Section 3.09) from the Property which Seller agrees to use reasonable efforts to obtain, and if Seller is unable to obtain such consent prior to the Closing Date, Purchaser or Seller may terminate this Agreement and Seller shall reimburse Purchaser for its reasonable, actual third-party out-of-pocket costs and expenses in conducting its due diligence but in no event to exceed $250,000 in the aggregate. Except as provided in the foregoing sentence, the execution and delivery of this Agreement and the consummation perform all of the transactions contemplated herein by this Contract. This Contract is a legal, valid and binding obligation of IPA.
(iii) IPA has duly authorized the execution, delivery and performance of this Contract and each agreement, document, or instrument required to be executed and delivered by Seller pursuant to this Contract. The execution, delivery or performance of this Contract or any other such document will not violate Sellerany term of IPA's partnership agreement.
(iv) The execution and delivery by IPA of this Contract and all documents associated therewith and the performance by IPA of formation its obligations thereunder (i) do not constitute a violation of any provisions of law, any order, regulation, or decree of any court or agency of government, or any indenture, mortgage, deed, trust agreement, or any other agreement, judicial decree, statute or regulation instrument to which Seller IPA is a party or by which it is bound.
(iii) Seller is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization.
(iv) The documents listed in Exhibit D include all Leases of the Property which is subject to or bound, and (ii) are not in effect on the date hereof. Seller has delivered to Purchaser copies conflict with nor will they result in a breach of all or constitute (with due notice and/or lapse of time) a default under any such Leases and such copies are true, accurate and complete. The documents listed in Exhibit D include all Contracts relating to the Property in effect on the date hereof. Seller has delivered to Purchaser copies of all such Contracts and such copies are true, accurate and completeagreement or any other instrument.
(v) On The Space Leases as examined and initialed express the Closing Dateentire agreement between IPA, there will be no Contracts affecting the Property except (A) the Contracts listed in Exhibit D and any New Contracts, (B) the Leases listed in Exhibit D and any New Leasesas landlord thereunder, and (C) any agreements delivered by Seller to Purchaser prior the Space Tenants. There are no leases or other forms of occupancy agreement which are in effect with respect to the Closing Date Premises and under which Seller is a holder of the landlord's interest other than the Space Leases (excluding any occupancy rights which derive from the Space Leases including without limitation subleases subject to such Space Leases). Purchaser expressly waives any objection to the fact that historically leases at the Premises have been approved executed by IPA or the managing agent of the building as IPA's agent, on behalf of all of the tenants in writing common. Seller has not consented to any subleases the term of which extends beyond the term of the lease under which the sublease is made, it being expressly agreed that except for this limited representation with respect to the length of term of any subleases in the building, Seller is not making any representations as to subleases or other forms of occupancy agreements made by PurchaserSpace Tenants, whether or not permitted under their respective Space Leases.
(vi) Seller Except as otherwise specifically set forth in Schedule E, all work required to be performed by the landlord under existing Space Leases has not received been done or will be performed prior to Closing
(vii) All construction allowances or other sums to be paid to any written notice of the Space Tenants in possession as of the date hereof, up to the date of Closing, have been or citation will be paid in full prior to the Closing;
(a "Notice"):viii) With respect to Space Leases for the garage space, for retail space in the Premises or for office or showroom space in the Premises demising 5000 rentable square feet or more:
(A) From any federal, state, county or municipal authority alleging no written notice of a violation of any fire, health, safety, building pollution, environmental (including, without limitation, relating to any Hazardous Substances), zoning law, regulation, permit, order or directive in respect material default on the part of the Property or any part thereoftenant thereunder has been sent by IPA, which relates to other than a violation which would cost more than $5,000 to correct which default notice setting forth a default which, as of the date hereof, has not been correctedcured;
(B) From any insurance company no written notice of any (1) a material defects or inadequacies in default on the Property or any part thereof, which would materially, adversely affect the insurability of the same or of any termination or threatened termination of any policy of insurance; or
(C) From any governmental authority with respect to landlord thereunder has been received by IPA, other than a proposed eminent domain taking of all or any portion default, which, as of the Property. If any such Notice is date hereof, has been cured or (2) offsets, credits, abatements, defenses or deductions against rent has been received from the tenants thereunder by Seller prior to Closing, Seller shall notify Purchaser promptly thereof and provide a copy of such Notice to Purchaser.
(vii) Seller has not received any notice of the pendency of any litigation or judicial or administrative proceeding affecting Seller or the Property which is not covered by insurance and which claims damages in excess of $100,000. Seller has not with respect to the Property suffered or confessed any judgment in or before any such court, commission, agency or other administrative authority against which remains unsatisfied.
(viii) Seller does not directly employ any employees who work at the PropertyIPA.
(ix) Except as set forth All brokerage commissions and other compensation and fees payable by reason of Space Leases (except in Exhibit "E' hereto, Seller has not granted to any person the right to receive any leasing commission respect of renewals) have been or will be paid in connection with the extension or renewal of any Lease or in connection with the exercise by any Tenant of any expansion or extension option contained in any Lease. Neither Seller nor the Property is subject to any "protection list" or similar obligation with respect full prior to the future leasing of the property. Except as set forth in Exhibit "F" hereto, no Tenant is delinquent in payment of any rent owed under its Lease for more than thirty (30) daysClosing.
(x) Except for suits, actions, litigation or proceedings (A) listed on Schedule G or (B) covered by insurance covering the Premises and except for routine non-payment proceedings, there is no suit, action, litigation or proceeding pending (as to which Seller is not a party has received proper service) or, to Seller's knowledge, otherwise pending, before any construction contracts for material tenant improvements to court or governmental authority against or relating to, or which would have an adverse effect upon, the Property or any portion thereof other than Contracts included in Exhibit D annexed hereto, and not more than $500,000 in the aggregate remains unpaid under said Contractstransaction contemplated by this Contract.
(xi) No portion right of first refusal or first offer, renewal, extension or expansion options nor any purchase options or right of first refusal or offer with respect to the Property have been granted (or will be as of the Property is subject Closing) to any real property Space Tenant(s) or any other tax abatement, reduction or phase-in program or agreement. There are no tax certiorari or tax reduction proceedings currently pending in respect of the Property parties except as set forth provided in Exhibit I.the Space Leases.
(xii) Attached hereto IPA has no employees employed at the Premises except as Exhibit G is a rent roll of the Property which is true and complete in all material respects as of the date thereoflisted on Schedule D, excluding summer or vacation replacements. Except as set forth on Exhibit G hereto, (a) no rent has been paid by any Tenant more than thirty (30) days in advance, (b) All such employees are union employees employed pursuant to the best of Seller's knowledge, neither any Tenant nor Seller is in default in the performance of any material covenant, agreement or condition contained in any of the Leases, (c) Seller has not received written notice from any Tenant regarding pending or threatened offsets against rent or for any other monetary or material claim against Seller which has not been cured and no future rent concessions have been created which are not disclosed in the Leases, and (d) to the best of Seller's knowledgeUnion Agreement, except as provided in this Agreement with respect to any New Lease, any and all construction or improvements that were required to be performed by Seller under any Lease prior to the date hereof have been fully completed and accepted by each Tenant and all leasing commissions payable on account of any of the Leases have been fully paid, except those which may become due in connection with the exercise by any Tenant of any expansion or extension option contained in any of the LeasesXxxx Xxxx.
(xiii) To the best of Seller's knowledge, all governmental approvals required for the current use As of the Property have been issued and are currently in effect without violationClosing, the Property is not under investigation for failure to comply in any material respect with any statutesno materials, laws, ordinances, rules, regulations, orders fixtures or directives of any and all governmental agencies pertaining to the use or occupancy of the Property, and the Property is in material compliance with, and not in violation of, any applicable statutes, laws, ordinances, rules, regulations, orders or directives; provided, however, that Seller makes no representation herein equipment with respect to compliance with the Americans with Disabilities Act Property will be part of any lease arrangement or any ruleare owned by third parties other than Space Tenants, regulation or interpretation promulgated thereunderother than perhaps the copying machine.
(xiv) To Schedule H annexed hereto is a correct and complete list of the best types and amounts of Seller's knowledge, there are no Hazardous Substances at the Property except for ordinary cleaning, landscaping, maintenance, insurance coverage maintained by Seller and office supplies which are used and stored in compliance force with applicable laws, and Seller has not previously used, manufactured. generated, treated, stored, disposed of, or released any Hazardous Substances on or under the Property or transported any Hazardous Substances over respect to the Property.
(xv) There IPA has been no sale by Seller of any of not conveyed its interest in the Property's air rights or development rights or air rights relating to or forming a part of the Propertyany third party.
(b) Purchaser represents and warrants thatas of the date hereof as follows:
(i) Purchaser is a corporation, limited liability company duly formedorganized, validly existing and in good standing under the laws of the State of NevadaDelaware.
(ii) Purchaser has the authorization all requisite power and power authority to execute enter into and deliver this Agreement and will on the Closing Date have the authorization and power to consummate the Closing. Any required consents from third parties to Purchaser's execution and delivery of this Agreement have been obtained. The execution and delivery of this Agreement do not, and, assuming due authorization of Purchaser, the consummation perform all of the transactions contemplated herein by this Contract. This Contract is a legal, valid and binding obligation of Purchaser.
(iii) Purchaser has duly authorized the execution, delivery and performance of this Contract and each agreement, document, or instrument required to be executed and delivered by Purchaser pursuant to this Contract. The execution, delivery or performance of this Contract or any other such document will not, not violate Purchaser's documents any term of formation its certificate of organization or its operating agreement or any other agreement, judicial decree, statute or regulation to which Purchaser is a party or by which it is boundPurchaser may be bound or effected.
(iiiiv) The execution and delivery by Purchaser of this Contract and all documents associated therewith and the performance by Purchaser of its obligations thereunder (i) do not constitute a violation of any provisions of law, any order, regulation, or decree of any court or agency of government, or any indenture, mortgage, deed, trust agreement, or any other instrument to which Purchaser is neither insolvent nor has a party or by which it made an assignment for the benefit or any of its creditorsproperty is subject to or bound, and (ii) are not in conflict with nor has it filed will they result in a breach of or had filed against itconstitute (with due notice and/or lapse of time) a default under any such agreement or any other instrument.
(c) As a condition to Purchaser's obligation to close title to the IPA Interest, the following representations in Section 27(a) above shall be true and correct at Closing as if made by Seller at Closing: (i)-(iv), (v) (except for renewals, amendments or modifications of existing Space Leases required by the terms of existing Space Leases or approved by Purchaser and except for new Space Leases entered into in accordance with the terms hereof), (vi)-(vii), (ix), (xi)-(xiii) and (xv).
(d) The representations of the parties comprising Seller, whether made as of the date hereof or deemed remade as of the date of Closing, shall survive the Closing for a period of ninety (90) days and any petition for bankruptcy claims which Purchaser may have with respect to such representations shall be made on or reorganizationbefore the ninetieth (90th) day after the date of Closing.
Appears in 1 contract
Samples: Purchase Agreement (Investment Properties Associates)
Sellers and Purchasers Representations. (a) The representations set forth in this Section 3.05(a) and in Section 7.04 constitute the only representations of Seller to Purchaser in connection with the sale of the Property. Seller represents to Purchaser as of the date hereof as follows:
(i) Seller is a New York general partnership, duly formed and validly existing and in good standing under the laws of the State of New York.
(ii) Seller has the authorization and power to execute and deliver this Agreement and to consummate the Closing contemplated hereby. Any required consents from third parties to Seller's execution and delivery of this Agreement have been obtained, except for the consent of General Electric Capital Corporation to the release of the Mortgage (as defined in Section 3.09) from the Property which Seller agrees to use reasonable efforts to obtain, and if Seller is unable to obtain such consent prior to the Closing Date, Purchaser or Seller may terminate this Agreement and Seller shall reimburse Purchaser for its reasonable, actual third-party out-of-pocket costs and expenses in conducting its due diligence but in no event to exceed $250,000 in the aggregate. Except as provided in the foregoing sentence, the execution and delivery of this Agreement and the consummation of the transactions contemplated herein by Seller will not violate Seller's documents of formation or any other agreement, judicial decree, statute or regulation to which Seller is a party or by which it is bound.
(iii) Seller is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization.
(iv) The documents listed in Exhibit D include all Leases of the Property which are in effect on the date hereof. Seller has delivered to Purchaser copies of all such Leases and such copies are true, accurate and complete. The documents listed in Exhibit D include all Contracts relating to the Property in effect on the date hereof. Seller has delivered to Purchaser copies of all such Contracts and such copies are true, accurate and complete.
(v) On the Closing Date, there will be no Contracts affecting the Property except (A) the Contracts listed in Exhibit D and any New Contracts, (B) the Leases listed in Exhibit D and any New Leases, and (C) any agreements delivered by Seller to Purchaser prior to the Closing Date which have been approved in writing by Purchaser.
(vi) Seller has not received any written notice or citation (a "Notice"):
(A) From any federal, state, county or municipal authority alleging a violation of any fire, health, safety, building pollution, environmental (including, without limitation, relating to any Hazardous Substances), zoning law, regulation, permit, order or directive in respect of the Property or any part thereof, which relates to a violation which would cost more than $5,000 to correct which has not been corrected;
(B) From any insurance company of any material defects or inadequacies in the Property or any part thereof, which would materially, adversely affect the insurability of the same or of any termination or threatened termination of any policy of insurance; or
(C) From any governmental authority with respect to a proposed eminent domain taking of all or any portion of the Property. If any such Notice is received by Seller prior to Closing, Seller shall notify Purchaser promptly thereof and provide a copy of such Notice to Purchaser.
(vii) Seller has not received any notice of the pendency of any litigation or judicial or administrative proceeding affecting Seller or the Property which is not covered by insurance and which claims damages in excess of $100,000. Seller has not with respect to the Property suffered or confessed any judgment in or before any such court, commission, agency or other administrative authority against which remains unsatisfied.
(viii) Seller does not directly employ any employees who work at the Property.
(ix) Except as set forth in Exhibit "E' " hereto, Seller has not granted to any person the right to receive any leasing commission in connection with the extension or renewal of any Lease or in connection with the exercise by any Tenant of any expansion or extension option contained in any Lease. Neither Seller nor the Property is subject to any "protection list" or similar obligation with respect to the future leasing of the property. Except as set forth in Exhibit "F" hereto, no Tenant is delinquent in payment of any rent owed under its Lease for more than thirty (30) days.
(x) Seller is not a party to any construction contracts for material tenant improvements to the Property or any portion thereof other than Contracts included in Exhibit D annexed hereto, and not more than $500,000 in the aggregate remains unpaid under said Contracts.
(xi) No portion of the Property is subject to any real property or other tax abatement, reduction or phase-in program or agreement. There are no tax certiorari or tax reduction proceedings currently pending in respect of the Property except as set forth in Exhibit I.
(xii) Attached hereto as Exhibit G is a rent roll of the Property which is true and complete in all material respects as of the date thereof. Except as set forth on Exhibit G hereto, (a) no rent has been paid by any Tenant more than thirty (30) days in advance, (b) to the best of Seller's knowledge, neither any Tenant nor Seller is in default in the performance of any material covenant, agreement or condition contained in any of the Leases, (c) Seller has not received written notice from any Tenant regarding pending or threatened offsets against rent or for any other monetary or material claim against Seller which has not been cured and no future rent concessions have been created which are not disclosed in the Leases, and ; (d) to the best of Seller's knowledge, except as provided in this Agreement with respect to any New Lease, any and all construction or improvements that were required to be performed by Seller under any Lease prior to the date hereof have been fully completed and accepted by each Tenant and all leasing commissions payable on account of any of the Leases have been fully paid, except those which may become due in connection with the exercise by any Tenant of any expansion or extension option contained in any of the Leases.
(xiii) To the best of Seller's knowledge, all governmental approvals required for the current use of the Property have been issued and are currently in effect without violation, the Property is not under investigation for failure to comply in any material respect with any statutes, laws, ordinances, rules, regulations, orders or directives of any and all governmental agencies pertaining to the use or occupancy of the Property, and the Property is in material compliance with, and not in violation of, any applicable statutes, laws, ordinances, rules, regulations, orders or directives; provided, provided however, that Seller makes no representation herein with respect to compliance with the Americans with Disabilities Act or any rule, regulation or interpretation promulgated thereunder.
(xiv) To the best of Seller's knowledge, there are no Hazardous Substances at the Property except for ordinary cleaning, landscaping, maintenance, and office supplies which are used and stored in compliance with applicable laws, and Seller has not previously used, manufactured. , generated, treated, stored, disposed of, or released any Hazardous Substances on or under the Property or transported any Hazardous Substances over the Property.
(xv) There has been no sale by Seller of any of the development rights or air rights relating to or forming a part of the Property.
(b) Purchaser represents and warrants that:
(i) Purchaser is a corporation, duly formed, validly existing and in good standing under the laws of the State of Nevada.
(ii) Purchaser has the authorization and power to execute and deliver this Agreement and will on the Closing Date have the authorization and power to consummate the Closing. Any required consents from third parties to Purchaser's execution and delivery of this Agreement have been obtained. The execution and delivery of this Agreement do does not, and, assuming due authorization of Purchaser, the consummation of the transactions contemplated herein by Purchaser will not, violate Purchaser's documents of formation or any other agreement, judicial decree, statute or regulation to which Purchaser is a party or by which it is bound.
(iii) Purchaser is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Cornerstone Properties Inc)
Sellers and Purchasers Representations. (a) The representations set forth in this Section 3.05(a) and in Section 7.04 constitute the only representations of Seller to Purchaser in connection with the sale of the Property. Seller represents to Purchaser as of the date hereof as follows:
(i) Seller is a New York general partnershiplimited partnership duly organized, duly formed and validly existing and in good standing under the laws of the State of New York.
(ii) Seller has the authorization all requisite power and power authority to execute enter into and deliver this Agreement and to consummate the Closing contemplated hereby. Any required consents from third parties to Seller's execution and delivery of this Agreement have been obtained, except for the consent of General Electric Capital Corporation to the release of the Mortgage (as defined in Section 3.09) from the Property which Seller agrees to use reasonable efforts to obtain, and if Seller is unable to obtain such consent prior to the Closing Date, Purchaser or Seller may terminate this Agreement and Seller shall reimburse Purchaser for its reasonable, actual third-party out-of-pocket costs and expenses in conducting its due diligence but in no event to exceed $250,000 in the aggregate. Except as provided in the foregoing sentence, the execution and delivery of this Agreement and the consummation perform all of the transactions contemplated herein by this Contract. This Contract is a legal, valid and binding obligation of Seller.
(iii) Seller has duly authorized the execution, delivery and performance of this Contract and each agreement, document, or instrument required to be executed and delivered by Seller pursuant to this Contract. The execution, delivery or performance of this Contract or any other such document will not violate any term of Seller's partnership agreement.
(iv) The execution and delivery by Seller of this Contract and all documents associated therewith and the performance by Seller of formation its obligations thereunder (i) do not constitute a violation of any provisions of law, any order, regulation, or decree of any court or agency of government, or any indenture, mortgage, deed, trust agreement, or any other agreement, judicial decree, statute or regulation instrument to which Seller is a party or by which it or either of the Properties is subject to or bound, and (ii) are not in conflict with nor will they result in a breach of or constitute (with due notice and/or lapse of time) a default under any such agreement or any other instrument.
(iiiv) Seller is neither insolvent nor has it made an assignment for not received written notice of any pending or threatened condemnation of all or any portion of either of the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganizationProperties.
(ivvi) Subject to the provisions of Section 4(b) above, the Space Leases (subject to amendments and supplements, which have been delivered and initialed by Purchaser or are permitted pursuant to Article 5 of this Contract) constitute all of the leases and agreements relating to the right of use or occupancy of any portion of the Properties, it being acknowledged by Purchaser that Seller makes no representation with respect to subleases, licenses or other forms of agreement (oral or written), the rights under which derive from the Space Leases or by the acts of a Space Tenant, as to which Seller makes no representations. To Seller's actual knowledge, the Space Leases which Purchaser has examined and initialed are true, correct and complete in all material respects.
(vii) Except as specifically noted otherwise on Schedule C-3, to Seller's actual knowledge, no written notice of a material default on the part of the tenant under any of the Space Leases has been sent by Seller, other than a default notice setting forth a default which, as of the date hereof, has been cured. Except as specifically noted otherwise on Schedule C-4, to Seller's actual knowledge, no written notice of a material default on the part of the landlord under any of the Space Leases has been received by Seller from a Space Tenant, other than a default notice setting forth a default which, as of the date hereof, has been cured.
(viii) The documents listed in Exhibit D include service, maintenance, supply and management contracts referred to on Schedules D-1 and D-2 (subject to amendments and supplements permitted pursuant to Section 5A of this Contract, herein collectively the "Service Contracts") constitute all Leases of Service Contracts affecting the Property which are Properties in effect on the date hereof. Seller To Seller's actual knowledge, the Service Contracts which Purchaser has delivered to Purchaser copies of all such Leases examined and such copies initialled are true, accurate correct and complete. The documents listed complete in Exhibit D include all Contracts relating to the Property in effect on the date hereof. Seller has delivered to Purchaser copies of all such Contracts and such copies are true, accurate and completematerial respects.
(vix) On To the Closing DateSeller's actual knowledge, there will be no Contracts affecting the Property except (A) the Contracts listed in Exhibit D and any New Contracts, (B) the Leases listed in Exhibit D and any New Leases, and (C) any agreements delivered by Seller to Purchaser prior to the Closing Date which have been approved in writing by Purchaser.
(vi) Seller has not received any written notice or citation (from any governmental authority, other than Violations covered under Article 7 hereof, to the effect that it is missing any required Licenses and Permits which, if not obtained, would have a "Notice"):
(A) From any federal, state, county or municipal authority alleging a violation of any fire, health, safety, building pollution, environmental (including, without limitation, relating to any Hazardous Substances), zoning law, regulation, permit, order or directive in respect material adverse effect on either of the Property or any part thereof, which relates to a violation which would cost more than $5,000 to correct which has not been corrected;
(B) From any insurance company of any material defects or inadequacies in the Property or any part thereof, which would materially, adversely affect the insurability of the same or of any termination or threatened termination of any policy of insurance; or
(C) From any governmental authority with respect to a proposed eminent domain taking of all or any portion of the Property. If any such Notice is received by Seller prior to Closing, Seller shall notify Purchaser promptly thereof and provide a copy of such Notice to Purchaser.
(vii) Seller has not received any notice of the pendency of any litigation or judicial or administrative proceeding affecting Seller or the Property which is not covered by insurance and which claims damages in excess of $100,000. Seller has not with respect to the Property suffered or confessed any judgment in or before any such court, commission, agency or other administrative authority against which remains unsatisfied.
(viii) Seller does not directly employ any employees who work at the Property.
(ix) Except as set forth in Exhibit "E' hereto, Seller has not granted to any person the right to receive any leasing commission in connection with the extension or renewal of any Lease or in connection with the exercise by any Tenant of any expansion or extension option contained in any Lease. Neither Seller nor the Property is subject to any "protection list" or similar obligation with respect to the future leasing of the property. Except as set forth in Exhibit "F" hereto, no Tenant is delinquent in payment of any rent owed under its Lease for more than thirty (30) daysProperties.
(x) Except for suits, actions, litigation or proceedings (1) listed on Schedule H-1 or (2) covered by insurance covering Seller is not a party to any construction contracts and the Properties (with those exceeding $250,000 listed on Schedule H-2) and except for material tenant improvements to the Property or any portion thereof other than Contracts included in Exhibit D annexed heretoroutine non-payment proceedings, and not more than $500,000 in the aggregate remains unpaid under said Contracts.
(xi) No portion of the Property is subject to any real property or other tax abatement, reduction or phase-in program or agreement. There are no tax certiorari or tax reduction proceedings currently pending in respect of the Property except as set forth in Exhibit I.
(xii) Attached hereto as Exhibit G is a rent roll of the Property which is true and complete in all material respects as of the date thereof. Except as set forth on Exhibit G hereto, (a) no rent has been paid by any Tenant more than thirty (30) days in advance, (b) to the best of Seller's knowledge, neither there is no suit, action, litigation or proceeding pending or threatened, before any Tenant nor Seller is in default in the performance of any material covenantcourt or governmental authority against or relating to, agreement or condition contained in any would have a materially adverse effect upon, either of the Leases, Properties or the transactions contemplated by this Contract.
(cxi) Seller has not received written notice from any Tenant regarding pending or threatened offsets against rent or for any other monetary or material claim against Seller which has not been cured and no future rent concessions have been created which are not disclosed in employees employed at the Leases, and (d) to the best of Seller's knowledge, Properties except as provided in this Agreement listed on Schedules E-1 and E-2 and excluding summer or vacation replacements.
(xii) Annexed hereto as Schedules F-1 and F-2 and made a part hereof is a list of all insurance policies presently affording coverage with respect to any New Lease, any the Properties and the information contained thereon is complete and accurate in all construction or improvements that were required to be performed by Seller under any Lease prior to material respects of the date hereof have been fully completed hereof. The policies are in full force and accepted by each Tenant effect and all leasing commissions payable on account of any of the Leases have been fully paid, except those which may become due in connection with the exercise by any Tenant of any expansion or extension option contained in any of the LeasesSeller has received no notices denying coverage thereunder.
(xiii) To the best of Seller's actual knowledge, the schedule of Space Tenant work ("Space Tenant Work") and leasing commissions ("Leasing Commissions") annexed hereto as Schedule I and made a part hereof sets forth all governmental approvals required for the current use of the Property have been issued outstanding Space Tenant Work to be performed and are currently in effect without violation, Leasing Commissions due and payable or which may become payable after the Property is not under investigation for failure to comply in any material respect with any statutes, laws, ordinances, rules, regulations, orders or directives of any and all governmental agencies pertaining to the use or occupancy of the Property, and the Property is in material compliance with, and not in violation of, any applicable statutes, laws, ordinances, rules, regulations, orders or directives; provided, however, that Seller makes no representation herein date hereof with respect to compliance with the Americans with Disabilities Act or any rule, regulation or interpretation promulgated thereunderProperties.
(xiv) To Seller shall use commercially reasonable efforts, prior to the best scheduled Closing Date, to obtain estoppel certificates signed by the Space Tenants (a "Tenant Estoppel Certificate") either in the form contemplated by the applicable lease or substantially in the form attached hereto as Exhibit 4 from Space Tenants under Space Leases covering in the aggregate not less than seventy five percent (75%) of all currently leased space under the Space Leases, it being understood and agreed that (1) in the event that Seller obtains Tenant Estoppel Certificates for less than 75% of all currently leased space under the Space Leases, Seller may substitute its own estoppel certificate ("Seller's Substitute Estoppel Certificates") for up to twenty five percent (25%) of all currently leased space under the Space Leases, (2) in no event shall Purchaser receive Tenant Estoppel Certificates from Space Tenants occupying less than 50% of all currently leased space under the Space Leases, (3) Seller shall not be obligated to incur any additional cost or expense to obtain any estoppel certificates and (4) Seller shall not be obligated or compelled to bring any action or institute any proceeding in furtherance of the foregoing; it being agreed that Seller's liability with respect to any of Seller's knowledgeSubstitute Estoppel Certificates shall survive the Closing for a period ending December 31, there are 2000. Without limiting the generality of the foregoing, Purchaser and Seller agree that for purposes of determining the percentage of currently leased space in the Premises, the square footage numbers in Schedules C-1 and C-2 shall be deemed to be controlling. If Seller shall fail to obtain and deliver to Purchaser at Closing Tenant Estoppel Certificates or Seller's Substitute Estoppel Certificates satisfying the requirements set forth in the preceding sentence, Purchaser may, in its sole and absolute discretion, terminate this Contract, whereupon the Deposit (and the Additional Deposit, if applicable) (together with any interest earned thereon) and the Promissory Note (and the Additional Promissory Note, if applicable) shall be returned to Purchaser and this Contract shall be of no Hazardous Substances at the Property except for ordinary cleaning, landscaping, maintenancefurther force or effect, and office supplies neither party shall have any further rights or liabilities against or to the other except as may arise under any provision of this Contract which are used and stored in compliance with applicable laws, and Seller has not previously used, manufactured. generated, treated, stored, disposed of, or released any Hazardous Substances on or under by its terms survives the Property or transported any Hazardous Substances over the Propertytermination of this Contract.
(xv) There has been are no sale real property tax reduction proceedings affecting or pending with respect to the Premises, except as disclosed on Schedule J.
(xvi) All Security Deposits (and the form thereof) held by Seller under the existing Space Leases are set forth in Schedule K hereto. Whenever a representation or warranty is made in this Contract on the basis of the "actual knowledge" of Seller, such representation and warranty is made with the exclusion of any facts disclosed in the written items, materials and other information regarding the Properties furnished by or on behalf of Seller to Purchaser on or prior to the Closing date, or otherwise known to Purchaser, and is made solely on the basis of the development rights actual (as distinguished from implied, imputed, or air rights relating to or forming a part constructive), current knowledge of Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxx, individuals having the principal responsibility for overseeing the operation of the PropertyProperties, on the date on or as of which such representation or warranty is made, without any duty to make any inquiry or investigation or to review any files or other materials, and without attribution to Seller or any such named individual of facts or matters otherwise within the personal knowledge of any other officers, employees or agents of Seller or any third parties, including but not limited to tenants of the Properties or any property manager or leasing agent for the Properties.
(b) Purchaser represents as of the date hereof and warrants thatas of the date of Closing as follows:
(i) Purchaser is a corporation, limited partnership duly formed, organized and validly existing under the laws of the State of California and in good standing under the laws of the State of NevadaNew York.
(ii) Purchaser has the authorization all requisite power and power authority to execute enter into and deliver this Agreement and will on the Closing Date have the authorization and power to consummate the Closing. Any required consents from third parties to Purchaser's execution and delivery of this Agreement have been obtained. The execution and delivery of this Agreement do not, and, assuming due authorization of Purchaser, the consummation perform all of the transactions contemplated herein by this Contract. This Contract is a legal, valid and binding obligation of Purchaser.
(iii) Purchaser has duly authorized the execution, delivery and performance of this Contract and each agreement, document, or instrument required to be executed and delivered by Purchaser pursuant to this Contract. The execution, delivery or performance of this Contract or any other such document will not, not violate Purchaser's documents any term of formation its operating agreement or any other agreement, judicial decree, statute or regulation to which Purchaser is a party or by which it is boundPurchaser may be bound or effected.
(iiiiv) The execution and delivery by Purchaser of this Contract and all documents associated therewith and the performance by Purchaser of its obligations thereunder (i) do not constitute a violation of any provisions of law, any order, regulation, or decree of any court or agency of government, or any indenture, mortgage, deed, trust agreement, or any other instrument to which Purchaser is neither insolvent nor has a party or by which it made an assignment for the benefit or any of its creditorsproperty is subject to or bound, and (ii) are not in conflict with nor has it filed will they result in a breach of or had filed against itconstitute (with due notice and/or lapse of time) a default under any such agreement or any other instrument.
(c) The representations made by Seller and Purchaser in Sections 27(a) and (b) above shall survive the Closing for a period ending on December 31, 2000 and any petition for bankruptcy claims which Purchaser may have with respect to such representations shall be made on or reorganizationbefore December 31, 2000.
Appears in 1 contract
Samples: Purchase Agreement (Investment Properties Associates)
Sellers and Purchasers Representations. (a) The representations set forth in this Section 3.05(a) and in Section 7.04 constitute the only representations of Seller to Purchaser in connection with the sale of the Property. Seller represents to Purchaser as of the date hereof as follows:
(i) Seller is a New York general limited partnership, duly formed and organized, validly existing and in good standing under the laws of the State of New York. Neither Seller nor any of the parties comprising Seller has filed a voluntary petition in bankruptcy or insolvency or has had an involuntary petition in bankruptcy or insolvency filed against it which has not been dismissed.
(ii) Seller has the authorization all requisite power and power authority to execute enter into and deliver this Agreement and to consummate the Closing contemplated hereby. Any required consents from third parties to Seller's execution and delivery of this Agreement have been obtained, except for the consent of General Electric Capital Corporation to the release of the Mortgage (as defined in Section 3.09) from the Property which Seller agrees to use reasonable efforts to obtain, and if Seller is unable to obtain such consent prior to the Closing Date, Purchaser or Seller may terminate this Agreement and Seller shall reimburse Purchaser for its reasonable, actual third-party out-of-pocket costs and expenses in conducting its due diligence but in no event to exceed $250,000 in the aggregate. Except as provided in the foregoing sentence, the execution and delivery of this Agreement and the consummation perform all of the transactions contemplated herein by this Contract. This Contract is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
(iii) Seller has duly authorized the execution, delivery and performance of this Contract and each agreement, document, or instrument required to be executed and delivered by Seller pursuant to this Contract. The execution, delivery or performance of this Contract or any other such document will not violate Seller's documents any term of formation its partnership agreement or any other agreement, judicial decree, statute or regulation to which Seller is a party or by which it is bound.
(iii) Seller is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed may be bound or had filed against it, any petition for bankruptcy or reorganizationaffected.
(iv) The execution and delivery by Seller of this Contract and all documents listed associated therewith and the performance by Seller of its obligations thereunder (x) do not constitute a violation of any provisions of law, any order, regulation, or decree of any court or agency of government, or any indenture, mortgage, deed, trust agreement, Seller's organizational documents or any other instrument to which Seller is a party or by which it or any of its property is subject to or bound, and (y) are not in Exhibit D include all Leases conflict with nor will they result in a breach of the Property which are in effect on the date hereofor constitute (with due notice and/or lapse of time) a default under any such agreement or any other instrument. Seller has delivered to Purchaser copies obtained all consents, approvals, authorizations or orders of all such Leases any court or governmental agency or body or any third party, if any, required for the execution, delivery and such copies are true, accurate and complete. The documents listed in Exhibit D include all Contracts relating to the Property in effect on the date hereof. performance by Seller has delivered to Purchaser copies of all such Contracts and such copies are true, accurate and completethis Contract.
(v) On the Closing Date, there will be no Contracts affecting the Property except (A) the Contracts listed in Exhibit D and any New Contracts, (B) the Leases listed in Exhibit D and any New Leases, and (C) any agreements delivered by Seller to Purchaser prior to the Closing Date which have been approved in writing by Purchaser.
(vi) Seller has not received any written notice or citation (a "Notice"):
(A) From any federal, state, county or municipal authority alleging a violation of any fire, health, safety, building pollution, environmental (including, without limitation, relating to any Hazardous Substances), zoning law, regulation, permit, order or directive in respect of the Property or any part thereof, which relates to a violation which would cost more than $5,000 to correct which has not been corrected;
(B) From any insurance company of any material defects or inadequacies in the Property or any part thereof, which would materially, adversely affect the insurability of the same or of any termination or threatened termination of any policy of insurance; or
(C) From any governmental authority with respect to a proposed eminent domain taking of all or any portion of the Property. If any such Notice is received by Seller prior to Closing, Seller shall notify Purchaser promptly thereof and provide a copy of such Notice to Purchaser.
(vii) Seller has not received any notice of the pendency of any litigation or judicial or administrative proceeding affecting Seller or the Property which is not covered by insurance and which claims damages in excess of $100,000. Seller has not with respect to the Property suffered or confessed any judgment in or before any such court, commission, agency or other administrative authority against which remains unsatisfied.
(viii) Seller does not directly employ any employees who work at the Property.
(ix) Except as set forth in Exhibit "E' hereto, Seller has not granted to any person the right to receive any leasing commission in connection with the extension or renewal of any Lease or in connection with the exercise by any Tenant of any expansion or extension option contained in any Lease. Neither Seller nor the Property is subject to any "protection list" or similar obligation with respect to the future leasing of the property. Except as set forth in Exhibit "F" hereto, no Tenant is delinquent in payment of any rent owed under its Lease for more than thirty (30) days.
(x) Seller is not a party to any construction contracts for material tenant improvements to the Property or any portion thereof other than Contracts included in Exhibit D annexed hereto, and not more than $500,000 in the aggregate remains unpaid under said Contracts.
(xi) No portion of the Property is subject to any real property or other tax abatement, reduction or phase-in program or agreement. There are no tax certiorari or tax reduction proceedings currently pending in respect of the Property except as set forth in Exhibit I.
(xii) Attached hereto as Exhibit G is a rent roll of the Property which is true and complete in all material respects as of the date thereof. Except as set forth on Exhibit G hereto, (a) no rent has been paid by any Tenant more than thirty (30) days in advance, (b) to the best of Seller's knowledge, neither any Tenant nor Seller is in default in the performance of any material covenant, agreement or condition contained in any of the Leases, (c) Seller has not received written notice from of any Tenant regarding pending or threatened offsets against rent condemnation of all or for any other monetary or material claim against Seller which has not been cured and no future rent concessions have been created which are not disclosed in the Leases, and (d) to the best of Seller's knowledge, except as provided in this Agreement with respect to any New Lease, any and all construction or improvements that were required to be performed by Seller under any Lease prior to the date hereof have been fully completed and accepted by each Tenant and all leasing commissions payable on account portion of any of the Property.
(vi) There are no leases or other forms of occupancy agreements which are in effect with respect to the Premises and under which Seller is the holder of the landlord's interest, other than the Existing Space Leases. Every instrument, document or agreement which comprises each Existing Space Lease is listed on Schedule C-2 attached hereto and copies of same, (excluding any occupancy rights which derive from the Existing Space Leases including without limitation subleases subject to such Existing Space Leases), which copies are true, correct and complete in all material respects, have been fully paid, except those which may become due furnished to Purchaser for its review. Schedule C-2 includes a list of all guaranties and collateral documents executed in connection with each Existing Space Lease. There are no lease "buy out" agreements or assumed lease liabilities incurred by Seller in connection with the exercise by any Tenant of any expansion or extension option contained Existing Space Leases which will have not been paid in any full as of the Leases.
(xiii) To the best of Seller's knowledge, all governmental approvals required for the current use of the Property have been issued and are currently in effect without violation, the Property is not under investigation for failure to comply in any material respect with any statutes, laws, ordinances, rules, regulations, orders or directives of any and all governmental agencies pertaining to the use or occupancy of the Property, and the Property is in material compliance with, and not in violation of, any applicable statutes, laws, ordinances, rules, regulations, orders or directives; provided, however, that Seller makes no representation herein with respect to compliance with the Americans with Disabilities Act or any rule, regulation or interpretation promulgated thereunder.
(xiv) Closing. To the best of Seller's knowledge, there are no Hazardous Substances occupancies or tenancies in effect pertaining to the Premises except for the Existing Space Tenants and persons whose right of occupancy or tenancy is through and subject to an Existing Space Lease, and, to the best of Seller's knowledge, there are no unauthorized persons occupying space in the Premises. Except as set forth in this paragraph (vi), nothing herein shall be deemed to constitute Seller's representation with respect to subleases at the Property except for ordinary cleaning, landscaping, maintenance, and office supplies which are used and stored in compliance with applicable laws, and Seller has not previously used, manufactured. generated, treated, stored, disposed of, or released any Hazardous Substances on or under the Property or transported any Hazardous Substances over the PropertyPremises.
(xvvii) There has been no sale by Seller of any (A) Each of the development rights or air rights relating to or forming a part of the PropertyExisting Space Leases is in full force and effect in accordance with its terms.
(b) Purchaser represents and warrants that:
(i) Purchaser is a corporation, duly formed, validly existing and in good standing under the laws of the State of Nevada.
(ii) Purchaser has the authorization and power to execute and deliver this Agreement and will on the Closing Date have the authorization and power to consummate the Closing. Any required consents from third parties to Purchaser's execution and delivery of this Agreement have been obtained. The execution and delivery of this Agreement do not, and, assuming due authorization of Purchaser, the consummation of the transactions contemplated herein by Purchaser will not, violate Purchaser's documents of formation or any other agreement, judicial decree, statute or regulation to which Purchaser is a party or by which it is bound.
(iii) Purchaser is neither insolvent nor has it made an assignment for the benefit of its creditors, nor has it filed or had filed against it, any petition for bankruptcy or reorganization.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Investment Properties Associates)
