Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises: (a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements. (b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant. (c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease. (d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area. (i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full. (f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises. (g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing. (h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises. (i) Each of the Premises are a separate parcel for real estate tax assessment purposes. (j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct. (k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 2 contracts
Samples: Sale Leaseback Commitment Agreement, Sale Leaseback Commitment Agreement (United Rentals Inc /De)
Seller’s Covenants, Representations and Warranties. In order (A) As a material inducement to induce Buyer Purchaser to enter into this Agreement and purchase to pay the PropertiesPurchase Price for the Property as set forth herein, Seller makes the following hereby covenants, agreements, representations warrants and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premisesrepresents to Purchaser as follows:
(ai) Seller has obtained is authorized to enter into and perform all necessary authorizations its obligations under this Agreement. This Agreement is, and consents all documents to enable it be executed by Seller pursuant hereto will be, the valid and binding obligations of Seller enforceable in accordance with their respective terms.
(ii) The Seller is not a party to execute and deliver any litigation or administrative proceedings nor, is Seller aware of a threat of any litigation or administrative proceedings, which could affect the Property or Seller’s right to enter into this Agreement and or to consummate the transaction transactions contemplated herebyby this Agreement. The Seller is not subject to any judgment, including without limitation all authorizations and consents required order, writ, injunction, decree or award of any court, arbitrator or governmental department, agency, board, bureau or instrumentality issued or entered in a proceeding to be obtained from governmental authorities during which the course of, and Seller is or was a party which is binding upon completion of, construction of the ImprovementsSeller.
(biii) Seller holdsThe Property is not subject to any lease, tenancy or prior other arrangement and from the date hereof to the Closing Date shall holdDate, no lease, tenancy, or other arrangement applicable to the Property, will be entered into by Seller without the prior written approval of Purchaser.
(iv) The Property shall, on the Closing Date, be in the same condition as it was on the date of Purchaser’s execution of this Agreement, normal wear excepted. Immediately prior to “Closing” (as hereinafter defined) Seller will have good and marketable fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by TenantProperty.
(cv) All documents required by this Agreement to be delivered by Seller to Purchaser are and will be true, correct and complete in all material respects and contain no material omissions that make such documents false or misleading.
(vi) To the best of Seller’s knowledge and belief, without actual examination or review having been made, that (a) the Property is in compliance with all applicable zoning and building laws, ordinances and regulations and (b) the Property has all necessary legal rights, utility service, and access to a public street.
(vii) Except for construction warranties with respect encumbrances described in the Title Commitment, Seller holds good and marketable title to the ImprovementsProperty, there are no service free and clear of restrictions on or maintenance contracts affecting any conditions to transfer or assignment, and free and clear of the Premises to which Buyer will be bound upon Closingliens, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Leasepledges, charges, or encumbrances.
(dviii) The Premises and There is no litigation, proceeding, or governmental investigation pending or threatened in eminent domain, for rezoning or otherwise against Seller that relates to or affects the proposed use thereof Property.
(ix) During the time in which Seller has owned the Property, Seller has not used, generated, transported, treated, constructed, deposited, stored, disposed, placed or located at, on, under or from the Property any flammable explosives, radioactive materials, hazardous or toxic substances, materials or wastes, pollutants or contaminants defined, listed or regulated by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain arealaws.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(gx) Seller is not a “foreign person” within the meaning for purposes of Section 1445(f)(3) § 1455 of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at ClosingCode.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(jB) All of the financial data regarding the constructionforegoing representations and warranties shall be applicable, ownership true, correct and operation of each complete, both as of the Premises date hereof and as of the Closing Date, and Seller shall, as stated in Section 11(B) of this Agreement, certify in writing at Closing that Seller has provided to Buyer is materially each and all of said representations and warranties are true, correct and complete as of and correctwith respect to that date.
(kC) The Improvements have been constructed in accordance Notwithstanding anything else to the contrary herein, the parties acknowledge and agree that the improvements on the property are being purchased “as-is” with the provisions of each of the respective Leasesno representations or warranties regarding their condition(s).
Appears in 2 contracts
Samples: Purchase Agreement (Adcare Health Systems Inc), Purchase Agreement (Adcare Health Systems Inc)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesProperty, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each the Property for a period of one year after the respective Premises:Closing Date.
(a) a. Subject to the provisions of Section 7, Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) b. Seller holds, or prior to the Closing Date shall hold, holds fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective PremisesExceptions, and liens and encumbrances encumbrances, if any, which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the PremisesLease, to be conducted by TenantTenant at the Premises.
(c) c. Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises Property to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The d. To the best of Seller's knowledge, the Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
e. As of the Closing Date (i) There there shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease; (ii) Tenant shall not have any defense, set-off or counterclaim in respect of its obligations under the Lease for each arising as a result of the PremisesSeller's actions or activities, or those of Seller's employees, agents or contractors; and (iiiii) all leasing commissions and fees with respect to each of the LeasesLease, if any, have been paid in fullfull by Seller or Tenant.
(f) f. There is no pending or, to Seller’s 's knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the PremisesProperty.
(g) g. Seller is not a “"foreign person” " within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) h. To the best of Seller’s actual 's knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the i. The Premises are a separate parcel for real estate tax assessment purposes.
(j) j. All of the financial data regarding the construction, ownership and operation of each of the Premises Property that Seller has provided to Buyer is materially true, complete and correct.
(k) The k. To the best of Seller's knowledge, the Improvements have been constructed in accordance with (i) the provisions Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
l. To the best of each Seller's knowledge, no Hazardous Materials are, will be, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller's knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or proceeding arising out of the respective Leasescondition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
m. As of the date hereof and the Closing Date there is, to the best of Seller's knowledge and shall exist no event which is or would, with the giving of notice or passage of time or both, constitute an event of default under the Franchise Agreement.
n. Seller specifically acknowledges and understands that where Seller actually knows of any fact(s) materially, adversely affecting the value of the Property, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants that, other than as may be disclosed in the foregoing representations and warranties, and except with respect to general market conditions applicable to the Property to which Seller makes no representation and warranty, Seller has no knowledge of any other fact(s) materially adversely affecting the value of the Property whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements of Seller set forth herein and elsewhere in this Agreement shall be true upon the execution of this Agreement and shall be reaffirmed and repeated in writing at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date for a period of one year.
Appears in 2 contracts
Samples: Hotel Purchase and Sale Contract (CNL Hospitality Properties Inc), Hotel Purchase and Sale Contract (CNL Hospitality Properties Inc)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesProperty, Seller Seller, jointly and severally, makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts or other agreements affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place and on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the LeasesLease, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(j) No Hazardous Materials are, will be, or to the best of Seller’s knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller’s knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending ,or, to the best of Seller’s knowledge, threatened, action or proceeding arising out of the condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(k) The Improvements have been constructed Property is contained in accordance with one or more separate parcels for real estate tax assessment purposes, which parcels do not contain any land other than the provisions of each Property. All of the respective Leasesrepresentations, warranties and agreements of Seller set forth herein and elsewhere in this Agreement shall be true upon the execution of this Agreement and shall be reaffirmed and repeated in writing at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date for a period of one (1) year after the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (Air Industries Group)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesPremises, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective PremisesExceptions, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the ImprovementsTo Seller’s knowledge, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning regulations or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(fd) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(ge) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(f) Seller has not received any written notice or copy of notice from any governmental agency or official to the effect that any condemnation proceeding is contemplated in connection with the Property.
(g) Seller has not received any written notice from any governmental agency of any violation of any applicable governmental law by or of the Seller or the Property with respect to the Property in any material respect which has not been previously cured.
(h) Seller and, to Seller’s knowledge, each person or entity owning an interest in Seller is (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), and (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, and (iii) not an “Embargoed Person.” To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any none of the Premisesfunds or other assets of Seller constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed Person (as hereinafter defined), and to Seller’s knowledge, no Embargoed Person has any interest of any nature whatsoever in Seller (whether directly or indirectly). The term “Embargoed Person” means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq.
(i) Each of , the Premises are a separate parcel for real estate tax assessment purposesTrading with the Enemy Act, 50 U.S.C. App. 1 et seq.
(j) , and any Executive Orders or regulations promulgated thereunder. All of the financial data regarding representations, warranties and agreements of Seller set forth herein and elsewhere in this Agreement shall be true upon the constructionexecution of this Agreement, ownership shall be reaffirmed and operation of each repeated in writing at and as of the Premises that Seller has provided to Buyer is materially trueClosing Date, complete and correct.
shall survive Closing for a period of twelve (k12) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.months
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (Delta Apparel, Inc)
Seller’s Covenants, Representations and Warranties. In order Sellers represent and warrant to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective PremisesPurchaser that:
(a) Seller has obtained all necessary authorizations Enexco is a corporation duly organized, validly existing, and consents in good standing under the laws of the State of Texas; (ii) Enexco is duly qualified to enable transact business in each jurisdiction where the nature and extent of its business and properties require the same in order for it to execute perform its obligations under this Agreement; (iii) Enexco possesses all requisite authority, power, licenses, permits, and deliver franchises to conduct its business and execute, deliver, and comply with the terms and provisions of this Agreement and to consummate the transaction contemplated herebyany other document, instrument, or agreement provided for herein, including without limitation the Assignment, all authorizations of which have been duly authorized and consents required to be obtained from governmental authorities during the course of, approved by all necessary corporate action and upon completion of, construction of the Improvements.for which no further approval or consent is required;
(b) Seller holdsN & R Resources is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas; (ii) N & R Resources is duly qualified to transact business in each jurisdiction where the nature and extent of its business and properties require the same in order for it to perform its obligations under this Agreement; (iii) N & R Resources possesses all requisite authority, power, licenses, permits, and franchises to conduct its business and execute, deliver, and comply with the terms and provisions of this Agreement and any other document, instrument, or agreement provided for herein, including the Assignment, all of which have been duly authorized and approved by all necessary corporate action and for which no further approval or consent is required;
(c) This Agreement has been duly executed and delivered on behalf of Sellers and is binding and enforceable against Sellers in accordance with its terms and at the Closing. All documents and instruments required hereunder to be executed and delivered by Sellers shall have been duly executed and delivered at Closing, and the execution, delivery, and performance of this Agreement by Sellers and the consummation of transactions contemplated hereby will not constitute a breach of, an event of default under, a violation of, or a conflict with any agreement or other instrument to which Sellers is a party (except to the extent such instrument may be released at the Closing), nor will the same cause Sellers to be in violation of their Articles of Incorporation or Bylaws, as the case may be, or any applicable laws or regulations or any order of any court or governmental agency having jurisdiction;
(d) All ad valorem, property, production, severance, excise, and similar taxes and assessments based on or measured by the ownership of the Property or the Production or the receipt of proceeds therefrom, which have become due and payable prior to the date hereof with respect to the Property have been properly paid, and Sellers' allocable share of such taxes and assessments which become due and payable prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premisesbe properly paid by Sellers, and liens all royalties, overriding royalties and encumbrances payments to any third parties which will be paid have become due and discharged at or payable prior to the date hereof with respect to production from the Property, have been properly paid, and will be hereafter properly paid for the period prior to Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(ce) Except Sellers have incurred no liability, contingent or otherwise, for construction warranties brokers' or finders' fees in respect of this transaction for which Purchaser shall have any responsibility whatsoever;
(f) Prior to the Closing, Sellers will pay or cause to be paid all costs and expenses incurred in connection with the Property and will comply with all contracts or other agreements relating to the Property incurred while owned by Sellers;
(h) There are no first rights of refusal, consents, authorizations, preferential rights, options, or claims of a similar nature affecting the Property, other than those listed in Exhibit "E," said listed consents defined herein as "Consents";
(i) Sellers shall, upon request, subrogate Purchaser to any claim which Sellers may have against any third party, prior owner, vendor, or assignor with respect to the Improvements, there are no service or maintenance contracts affecting any share of the Premises to which Buyer will be bound upon ClosingProperty acquired by Purchaser, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.thereto;
(j) All of There are no "imbalances" which allow any other party to make up production at any time after the financial data regarding Effective Date, under any operating agreement, gas balancing agreement and storage agreement, gas transportation agreement, gas processing or dehydration agreement, or other similar agreement relating to the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.Property;
(k) The Improvements Sellers have been constructed not directly or indirectly reserved or retained any recorded or unrecorded interest or rights in accordance with the provisions of each any of the respective Leases.Property, and Sellers shall not reserve any recorded or unrecorded executory interest or rights relating to the Property;
(1) The Assignment to Purchaser shall contain a special warranty as to its right, title, and interest as described in the exhibits attached hereto, by, through, and under Sellers, but not otherwise; and the Assignment shall contain a warranty by Sellers that the Property is free and clear of all encumbrances, liens, and mortgages created by, through, or under Sellers, save and except such encumbrances expressly set forth in the exhibits attached hereto, and further save and except liens for taxes not yet due and payable;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Queen Sand Resources Inc)
Seller’s Covenants, Representations and Warranties. In order Seller and Guarantor represent, warrant and covenant the following as of this date and during the term of this Agreement:
a) Seller represents that it is not contemplating closing its business.
b) Seller represents that it has not commenced any case or proceeding seeking protection under any bankruptcy or insolvency law, or had any such case or proceeding commenced against it, and it is not contemplating commencing any such case or proceeding.
c) Seller represents that the Future Receivables are free and clear of all claims, liens or encumbrances of any kind whatsoever.
d) Seller represents that it does not intend to induce Buyer temporarily close its business for renovations or other reasons during the next twelve months.
e) Seller shall not take any action to discourage the use of credit cards which are settled through its processor or to permit any event to occur which could have an adverse effect on the use, acceptance or authorization of credit cards for the purchase of Seller’s services and products;
f) Seller shall not change its arrangements with its credit card processor in any way which is adverse to Purchaser;
g) Seller shall not change the credit card processor through which the major credit cards are settled from Approved Processor to another credit card processor or to permit any event to occur that could cause a diversion of any of Seller’s credit card transactions to another processor without Purchaser’s prior written consent;
h) Seller represents that as of this date, all Seller’s credit card sales and transactions are being processed exclusively with Approved Processor or are being deposited exclusively into a Dedicated Account;
i) Seller shall not sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of Purchaser; Seller shall not enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and a concurrent agreement for the purchase and sale of each future receivables with any purchaser aside from First Funds.
j) Seller shall furnish Purchaser with the bank statements for its Bank Account and any and all other accounts to which proceeds from Seller’s sales are deposited within seven (7) days’ of any such request by Purchaser;
k) Seller shall unconditionally ensure that the cash Seller receives from Approved Processor attributable to the Specified Percentage of the respective Premises:Future Receivables is immediately thereafter available to Purchaser for collection via ACH from Seller’s Bank Account;
(al) Seller has obtained all necessary authorizations and consents shall not attempt to enable revoke its ACH authorization to Purchaser set forth in this Agreement or otherwise take any measure to interfere with Purchaser’s ability to collect the cash that Seller receives (i) from Approved Processor attributable to the Specified Percentage of the Future Receivables or (ii) from the Dedicated Account;
m) Seller shall not close its Dedicated Account, or close or change the bank account into which Approved Processor deposits the Future Receivables to another account without Purchaser’s prior written consent;
n) Seller shall not conduct its businesses under any name other than as disclosed to Purchaser or change any of its places of business without Purchaser’s prior written consent; and
o) Seller represents that the information it to execute and deliver furnished Purchaser in this Agreement and to consummate the transaction contemplated herebypreceding application, including without limitation limitation, Seller’s processing statements, is true and accurate in all authorizations respects and consents required to be obtained from governmental authorities during fairly represents the course offinancial condition, result of operations and cash flows of Seller at such dates, and upon completion ofsince the dates therein, construction there has been no material adverse change in the business or its prospects or in the financial condition, results of the Improvements.
(b) Seller holdsoperations, or prior to the Closing Date shall hold, fee simple title to each cash flows of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by TenantSeller.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesPremises, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, holds fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective PremisesExceptions, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the PremisesLease, to be conducted by TenantTenant at the Premises.
(c) Except There are no employees of Seller at the Premises, and except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts Seller is a party or by which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Leaseis bound.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist exists no uncured Event of Default nor any event which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Seller or Tenant under the respective Lease; (ii) Tenant has not asserted nor does it have any defense, set-off or counterclaim in respect of its obligations under the Lease; (iii) no rent under the Lease has been prepaid for each of the Premisesmore than one month in advance nor are there any rebates, rental concessions, free-rent periods, credits, set-offs, rent reductions, take-back or take-over obligations or any other concessions granted thereunder; and (iiiv) all leasing commissions and fees with respect to each of the LeasesLease, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any the Premises.
(g) There is no pending or, to Seller’s knowledge, threatened or contemplated taking or eminent domain action affecting title to or the use or operation of the Premises.
(gh) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(hi) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(ij) Each of the The Premises are is a separate parcel for real estate tax assessment purposes.
(jk) All of the financial data regarding the construction, ownership and operation of each of the Premises and regarding Tenant that Seller has previously provided to Buyer prior to the Effective Date and prior to the Closing Date, is materially true, complete and correct.
(kl) The Improvements have been constructed in accordance with applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(m) To the provisions best of each Seller’s knowledge and belief, except as disclosed in the Phase I Report, no Hazardous Materials are, will be, or have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises is in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller’s knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller’s knowledge, threatened action or proceeding arising out of the respective Leasescondition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(n) Seller specifically acknowledges and understands that where Seller knows of any fact(s) materially affecting the value or desirability of the Premises, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer.
(o) There are no leases on the Premises as of the date hereof and as of the date of Closing other than the Lease with the Tenant.
(p) Seller has delivered to Buyer all of the items Seller is and was required to deliver pursuant to Section 5(a) and Section 8 of this Agreement.
(q) Seller warrants that, other than as may be disclosed in the foregoing representations and warranties, Seller has no knowledge of any other fact(s) materially affecting the value or desirability of the Premises whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements of Seller set forth herein and elsewhere in this Agreement shall be true upon the execution of this Agreement and shall be considered reaffirmed as of the Closing Date and shall survive the Closing Date without the need for Seller to sign any reaffirmation certificate or affidavit or any other documents at closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (Global Income Trust, Inc.)
Seller’s Covenants, Representations and Warranties. In order to induce Seller hereby represents, warrants, covenants and agrees with Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premisesas follows:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction not subjected any portion of the ImprovementsProperty to any interest, charge or assessment that is not shown as an existing lien on the record of any taxing authority that levies taxes or assessments.
(b) Seller holds, has not received any notice from any governmental authority having jurisdiction over the Property requiring or prior specifying any work to be done to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by TenantProperty.
(c) Except for construction warranties with respect to the ImprovementsSeller has not received any notice of, there are no service or maintenance contracts affecting and has not itself caused, any violation of the Premises to which Buyer will be bound upon Closingany statute, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictionsordinance, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law rule or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans authority in connection with air pollution, water pollution, environmental protection, or any other governmental action relating to restrict the Property.
(d) Seller has not received any notice of the exercise of eminent domain or change access condemnation, pending or threatened, which in any way affects the Property or any portion thereof, from any highway governmental or road other authority authorized to exercise such power.
(e) Seller has not entered into any unrecorded leases, contracts or obligations affecting the Property. Seller will supply all record, notes, contracts and letters associated with BD Realty, Bxxx Xxxx, and the management of the Property to date.
(f) Seller has received no notice of any claims, actions, suits or other proceedings pending or threatened by any person or entity with respect to the Property.
(g) Seller has, or will have on or before the Closing, performed, observed and complied with all of the covenants, agreements and conditions required by this Agreement to be performed, observed and complied with by Seller, and will execute and deliver all documents required to be executed and delivered by Seller in order to consummate the transaction contemplated herein. The covenants, representations and warranties of Seller hereunder shall survive the closing of this transaction and the recordation of the Deed. In the event any of the Premises.
covenants, representations or warranties described herein are untrue or breached by Seller, Seller shall indemnify, defend and hold harmless Buyer and Buyer’s successors and assigns, from and against any and all claims, costs, damages, liabilities, expenses, charges and fees (iincluding attorneys’ fees) Each incurred by Buyer, or its successors or assigns, as a result of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All untruth or breach of any of the financial data regarding the construction, ownership and operation of each of the Premises that representations or warranties made by Seller has provided to Buyer is materially true, complete and correcthereunder.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Great Western Land Recreation Inc)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesPremises, Seller makes the following covenants, agreements, representations and warranties, all of which are true and correct as to the matters set forth therein as of the date hereof and shall be true and correct on the Closing Date, and all of which, unless otherwise specified, shall survive the Closing and the purchase and sale for a period of each of the respective Premisesone (1) year:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) To the Actual Knowledge (defined below) of Seller, the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will not, with or without the giving of notice or passage of time or both: (i) violate, conflict with or result in the breach of any terms or provisions of or require any further consent, approval or authorization under: (w) the Operative Documents (defined below) by which Seller is governed; or (x) any statutes, laws, rules or regulations of any governmental body applicable to Seller, or its properties or assets, except those applying to any filing or other requirements of the U.S. Securities and Exchange Commission (SEC) in connection with this Agreement or the Closing; or (y) any judgment, decree, writ, injunction, order or award of any arbitrator, court or governmental authority binding upon Seller or any of its respective properties or assets; or (z) any instrument or agreement to which Seller or its properties may be bound or relating to or affecting all or any portion of the Premises; or (ii) result in any lien, claim, encumbrance or restriction on the proceeds of the sale of all or any portion of the Premises or on any of the respective properties or assets of Seller. Seller and Buyer agree this Section 10(b) shall not survive the Closing.
(c) Except for the encumbrances to be paid and satisfied at Closing and as may otherwise be provided in the Title Commitment, Seller has not made any other consensual assignment, pledge or mortgage of, or granted any security interest in, any portion of the Premises to be transferred, conveyed or assigned to Buyer on the Closing Date.
(d) Except for the Lease and the Permitted Exceptions, if applicable, no person, firm or entity has any rights to acquire or to lease all or any portion of the Premises or otherwise to obtain any interest therein and there are no outstanding options, rights of first refusal or negotiation, rights of reverter or rights of first offer relating to all or any portion of the Premises or any interest therein.
(e) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective PremisesExceptions, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(cf) Except for construction warranties with respect to To the ImprovementsActual Knowledge of Seller, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning regulations or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(ig) There shall exist no event whichTo the Actual Knowledge of Seller, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There there is no pending oror threatened litigation, to Seller’s knowledgeannexation, threatened litigation condemnation, zoning, or other proceeding affecting the title to or the use or operation of the Premises, and Seller has received no notice of any actions, suits, proceedings, claims, orders, decrees or judgments affecting the Premises, or any portion thereof, or relating to or arising out of the Premisesownership of the Premises or any portion thereof which are pending in any court or by or before any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality.
(gh) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(hi) Except as may be provided in any environmental report(s) to be delivered to Buyer by Seller pursuant to Section 5(b), to Seller’s Actual Knowledge, Seller has not generated, used (with the exception of the use by Seller of cleaning or other, similar products in connection with the Premises), transported, treated, stored, released or disposed of any Hazardous Substance (defined below) in violation of any Legal Requirements (defined below) in connection with the Premises nor has there been any generation, use, transportation, treatment, storage, release or disposal of any Hazardous Substance, in connection with the ownership, operation, maintenance or occupancy of the Premises, which has created or might reasonably be expected to create any liability under any Legal Requirements or which would require any reporting to or notification to any federal, state or local governmental entity. Except as may be provided in any environmental report(s) to be delivered to Buyer by Seller pursuant to Section 5(b) or as may be shown in any environmental report(s) to be commissioned by Buyer hereunder, to Seller’s Actual Knowledge, no asbestos or polychlorinated biphenyl or underground storage tank is contained in or located on the Premises, and any Hazardous Substance handled or dealt with in any way in connection with the ownership, operation, maintenance or occupancy of the Premises during Seller's ownership thereof has been and is being handled or dealt with in all respects in compliance with applicable Legal Requirements. For purposes of this Agreement the term "Hazardous Substance" shall mean any and all hazardous substances or hazardous materials that are defined or listed in, or otherwise classified pursuant to, any applicable laws as "hazardous substances", "hazardous materials", "hazardous wastes" or "toxic substances", or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitibility, corrosivity, reactivity, radioactivity, carcinogenicy, or reproductive toxicity, and specifically includes, without limitation, asbestos and asbestos-containing materials.
(j) To Seller’s actual knowledgeActual Knowledge, there are the Premises does not violate any applicable zoning regulations or building code applicable to the Premises, except as may otherwise be provided in the Title Commitment.
(k) Seller has received no notice of, nor does Seller have any Actual Knowledge of, any violations (collectively, "Violations", and individually, a "Violation") of any applicable local, state or federal law, municipal ordinances or regulations, orders, rules or requirements of any federal, state, county state or municipal plans to restrict department or change agency having jurisdiction over or affecting the Premises or the construction, management, ownership, maintenance, operation, use, improvement, acquisition or sale thereof, including, without limitation, building, health and environmental laws, regulations and ordinances, and equal access from opportunity laws, regulations and ordinances (collectively, "Legal Requirements") whether or not officially noted or issued. Seller shall provide Buyer with notice of any highway Violations of which Seller obtains notice or road to Actual Knowledge between the Effective Date and the Closing Date.
(l) Except as shown in the tax bill provided in the Title Commitment, Seller has not received any notice of any pending general or special assessments against the Premises.
(im) Each of Except as shown in the Premises are a separate parcel for real estate tax assessment purposesTitle Commitment, Seller has not transferred, sold, pledged or mortgaged any development rights appurtenant to the Premises, nor has Seller entered into any contract or agreement in connection therewith.
(jn) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided not made a general assignment for the benefit of creditors, filed any voluntary petition in bankruptcy or received notice of or otherwise suffered the filing of an involuntary petition by Sxxxxx’s creditors, received notice of other otherwise suffered the appointment of a receiver to Buyer is materially truetake possession of all, complete and corrector substantially all, of Seller’s assets, or received notice of otherwise suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (Delta Apparel, Inc)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations represents and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premiseswarrants to Purchaser as follows:
(a) Seller Sovereign (i) is a partnership, duly organized, validly existing and in good standing under the laws of the State of Connecticut; (ii) has obtained all necessary authorizations the authority and consents power to enable it to execute and deliver enter this Agreement and to consummate the transaction transactions contemplated hereby, including without limitation all authorizations ; and consents required (iii) subject to be obtained from governmental authorities during obtaining the course of, and upon completion of, construction consent of the Improvementslimited partners of Sovereign, has duly authorized the execution and delivery of this Agreement and is duly bound to consummate the transactions contemplated hereby.
(b) Neither this Agreement nor the consummation of the transaction contemplated hereby will constitute or result in a violation or breach by Seller holdsof any agreement or contract to which Seller is bound or the Property is subject, or prior to the Closing Date shall holdany judgment, fee simple title to each of the Premisesorder, free of all lienswrit, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premisesinjunction or decree issued against or imposed upon it, and liens and encumbrances which or will be paid and discharged at or prior to the Closing. Seller has no actual knowledge result in a violation of any condition applicable law, order, rule or state regulation of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenantany government authority.
(c) Except for construction warranties with respect to Seller has not received any notification of any pending or threatened condemnation, requisition or similar proceeding affecting the Improvements, there are no service Property or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable portion thereof other than as Tenant under the Leasedisclosed herein.
(d) The Premises Seller has not received and, to the best of Seller's knowledge, there are no notices, orders, decrees or judgments issued relating to any alleged or actual violation of fire, health, safety, traffic, sanitation, water pollution, environmental or other laws affecting, against or with respect to the Property. Except for the Foreclosure, Seller has not received any written notification of any action, suit, proceeding or investigation pending or threatened which might become a cloud on the title to the Property or any portion thereof. From and after the proposed use thereof date hereof, Seller shall send to Purchaser (within three (3) days of delivery to or receipt by Tenant and the condition thereof do not violate any applicable deed restrictionsSeller) copies of all correspondence, zoning notices or subdivision regulations, urban redevelopment plans, localother communications delivered to or received by Seller from federal, state or federal environmental law local governmental authorities or regulation agencies in connection with the Property.
(e) Except for the Foreclosure, there are no defaults or any building code breaches by Seller or fire code applicable to the Property of any of the Premisescovenants, conditions, restrictions, rights-of-way, or easements or other instruments encumbering the Property or any portion thereof.
(f) No special taxes or assessments have been levied, assessed or imposed on or against the Property or any part thereof that have not been fully and finally paid, and are neither Seller, nor any of its agents or employees have received any notice, or have any knowledge, of contemplated, threatened or pending special taxes or assessments affecting the Property or any part thereof. Without limiting the generality of the preceding sentence, there is no pending assessment made by the Town of Manchester or any other authority with respect to the repair, maintenance or expansion of any water or sewage systems that may be located in any public right of way adjacent to the Property, or for any other public improvements or betterments of any type which would or could give rise to an assessment against the Property.
(g) Attached hereto as Exhibit B is a true, correct and complete rent roll for the Property including each and every lease, license or other occupancy agreement affecting any portion of the Property as of the date hereof. Prior to Closing, Seller will not, without Purchaser's prior written consent (i) collect any rent for more than the then current month; (ii) give any rent concessions or agree to do any work for, or give any consideration other than possession to, any tenant except in the ordinary course of business; or (iii) lease any units at the Property for a term in excess of twelve (12) months or at less than fair market rental rates.
(h) There is no union contract affecting the Property or the employees thereat and Seller will not designated by enter into any governmental agency such contract prior to be in a flood plain areaClosing.
(i) There shall exist Seller has received no event whichnotice that there are permits, licenses, other than ordinary business licenses, or consents required by any governmental authority in connection with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each use and occupancy of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, Property that have not already been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposesobtained.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided good and indefeasible title to Buyer is materially truethe Property in fee simple, complete and correctthe Personal Property, and has the right to convey and transfer same, subject to the existing tenant leases and encumbrances of record.
(k) The Improvements have been constructed From the date of this Agreement until Closing, Seller (i) shall maintain and repair the Property in accordance with its normal course of operations; (ii) shall operate the provisions Property in its normal course of operations, including continuing to make units ready and continuing leasing; (iii) shall pay all obligations arising from the Property, as payment becomes due; (iv) shall make no material alterations to the Property; and (v) shall maintain each of the respective Leasesapartment units at the Property in its current condition, reasonable wear and tear excepted.
(l) All of Seller's employees at the Property will be paid by Seller prior to Closing to the end of their last pay period. Benefits or compensation accrued prior to Closing due or claimed to be due either before or after Closing to employees or former employees of Seller shall not constitute obligations of Purchaser. All persons who are currently employed by Seller in connection with the management, operation or maintenance of the Property shall be terminated by Seller at or prior to Closing insofar as their employment relates to the Property.
(m) No portion of the Property (including, without limitation, rental, security, or damage deposits to be conveyed to the Purchaser hereunder) shall be subject at the Closing to the burdens or obligations of any management agreement respecting the Property, so that Purchaser shall receive the Property free and clear of any such burdens or obligations and shall be free to enter into a management agreement or arrangement with a manager of its own choice. Unless approved by Purchaser in writing prior to Closing, as of the Closing, there will not be any service, supply or maintenance agreements with respect to the Property or any portion thereof, other than as listed on Exhibit D attached hereto, unless the same can be canceled upon thirty (30) days notice without the necessity of payment of any termination penalty or premium.
(n) Except as disclosed by Seller and except for the possible presence of lead paint on the Property, Seller, to its knowledge, has not at any time, and no other party has at any time, handled, buried, stored, retained, refined, transported, processed, manufactured, generated, produced, spilled, allowed to seep, leak, escape or leech, or pumped, poured, emitted, emptied, discharged, injected, dumped, transferred or otherwise disposed of or dealt with Hazardous Substances (as hereinafter defined) on, to or from the Property. Seller knows of no seepage, leak, escape, leech, discharge, injection, release, emission, pumping, pouring, emptying or dumping of Hazardous Substances into waters on or adjacent to the Property, or onto lands from which such hazardous or toxic waste or substances might seep, flow or drain into such waters. The term "Hazardous Substances" shall mean and refer to any and all pollutants, contaminants, toxic or hazardous wastes or any other substances that might pose a hazard to health or safety, the removal of which may be required or the manufacture, use, maintenance or handling of which is restricted, prohibited or penalized by any Environmental Law (including, without limitation, asbestos, urea formaldehyde foam insulation and polychlorinated biphenyls). The term "Environmental Law" shall mean and refer to any law, ordinance, rule, regulation, order, judgment, injunction or decree relating to pollution, Hazardous Substances or environmental protection (including, without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, Chapters 445 and 446k of the Connecticut General Statutes, all amendments and supplements to any of the foregoing and all regulations issued pursuant thereto). The representations and warranties of Seller set forth above shall be true, accurate and correct in all material respects upon the date of execution of this Agreement and shall be deemed remade by Seller as of the Closing Date with the same force and effect as if first made as of and on such date. Seller's covenants, representations and warranties contained in this Section shall survive the Closing for a period of one year. Purchaser agrees to provide prompt written notification to Seller upon Purchaser's discovery of a default or breach of such covenants, representations and warranties. Any action brought by Purchaser to enforce Purchaser's rights with respect to such covenants, representations and warranties must by commenced promptly after discovery thereof by Purchaser and in any event no such action shall be commenced after the expiration of the aforesaid one year period.
Appears in 1 contract
Seller’s Covenants, Representations and Warranties. In order Seller, to induce Buyer to enter into this Agreement and purchase the Propertiesto complete Closing hereunder, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premiseswarranties to Buyer:
(a) Seller has obtained all necessary authorizations warrants and consents represents that (i) to enable it to execute its actual knowledge (actual knowledge meaning the knowledge of Xxxx Xxxxxxxx and deliver this Agreement the officers and to consummate directors of Seller and the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, individuals responsible for construction of the Improvements.
improvements at the Entire Tract) and except as otherwise disclosed in the Phase I Environmental Site Assessment dated , prepared by for part of the Entire Tract (b“Environmental Report”), no hazardous or toxic materials or substances or hazardous waste, residual waste or solid waste (as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act, and any other state or local environmental laws applicable thereto) are present on the Entire Tract (including, but not limited to, surface and ground water); (ii) Seller holdshas not been identified in any litigation, administrative proceedings or prior investigation as a potentially responsible party for any liability under any applicable environmental, hazardous or solid waste laws with respect to the Closing Date shall holdEntire Tract; (iii) except as otherwise disclosed in the Environmental Report, fee simple title to each Seller does not have any knowledge of the Premisesuse, free discharge, storage, transfer, handling, disposal or processing over, in, on or under the Entire Tract of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior any substances in violation of such laws; (iv) with respect to the ClosingEntire Tract, Seller has no actual knowledge of and has not received any notice from any governmental or quasi–governmental agency regarding any actual or potential violation of any applicable environmental, hazardous waste or solid waste laws. Simultaneous with its execution of this Agreement, Seller shall deliver a complete and accurate copy of the Environmental Report together with reliance letters from the consultant who prepared such report authorizing Buyer, its successors and assigns and Buyer’s lenders the right to use and rely upon such reports. Seller has no actual knowledge of any condition other environmental reports, tests or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms audits regarding any portion of the pertinent Lease at each Entire Tract existing elsewhere. To its actual knowledge, no landfill has occurred on any portion of the PremisesEntire Tract and no debris has been buried or placed on any portion of the Entire Tract.
(b) To its actual knowledge, to be conducted by Tenantthere were and are no underground storage tanks on the Entire Tract.
(c) Except for construction warranties with respect to the Improvements, there There are no service leases, tenancies, licenses or maintenance contracts affecting other rights of occupancy or use for all or any portion of the Premises Real Property and possession of the Real Property shall be given to which Buyer will be bound upon Closingunoccupied and free and clear of any leases and claims to or rights of possession, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Leaseoccupancy or use.
(d) The Premises Seller is under no restriction which would prohibit or prevent the conveyance of title as herein required and Seller will do nothing or suffer anything which would impair or hinder the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable Seller's so ability to any of the Premises, and are not designated by any governmental agency to be in a flood plain areaconvey.
(ie) There shall exist are no event whichother agreements of sale, with rights of first refusal, options to purchase, rights of reverter or rights of first offer relating to the giving of notice Real Property or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in fullany portion thereof.
(f) There is no claim, action, suit or proceeding, pending oror threatened, to Seller’s knowledgeagainst Seller or any portion of the Real Property, threatened litigation or other proceeding affecting the title relating to or arising out of the use ownership, management or operation of the Entire Tract or sale of Seller Lots or Lots in any court or before or by any governmental or public department, commission, board, bureau or agency. There is no claim, action, suit or proceeding, pending or threatened, against Seller relating to or arising out of the PremisesSeller’s actions or inaction in any court or before or by any governmental or public department, commission, board, bureau or agency.
(g) No assessments for public improvements have been made against the Real Property which will remain unpaid as of Closing on the Real Property and all assessments for work ordered, commenced or completed prior to the date of Closing shall have been paid by Seller in full at or prior to Closing. Buyer shall pay all assessments for work ordered or commenced after the date of Closing. Seller has not received written notice from any governmental agency of any special or other assessments for public improvements affecting the Real Property or any portion thereof.
(h) Seller has no notice nor actual knowledge of (i) pending annexation or condemnation proceedings affecting or which may affect, all or any portion of the Real Property or (ii) could result in the termination or reduction of the current access of the Real Property to existing public streets or of any reduction in/or to the sewer, water or other utility services presently serving or intended to serve the Real Property.
(i) Seller is not a “foreign person” within person as defined by the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986Foreign Investment in Real Property Tax Act. At Closing, as amended, and Seller shall certify its taxpayer identification number at Closingexecute and deliver to Buyer a Non-Foreign Affidavit in form satisfactory to Buyer and Title Company.
(hj) There are no adverse parties in possession of the Real Property.
(k) To Seller’s actual knowledge, no portion of the Real Property is (or there is no condition existing with respect to the Real Property) in violation of any applicable law, ordinance, code, rule, order regulation or requirement of any governmental or quasi-governmental authority and there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any outstanding and uncured notices of the Premisessuch violations.
(il) Each To its actual knowledge, there is no pending or anticipated reassessment or reclassification of any or all of the Premises are a separate parcel Real Property for state or local real estate tax assessment property taxation purposes.
(jm) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided and shall continue to Buyer is materially true, complete have at Closing the full power and correctauthority to execute and deliver this Agreement and all other documents now of hereafter to be executed and delivered by Seller pursuant to this Agreement and to consummate the transactions contemplated thereby.
(kn) The Improvements have authorization, execution and delivery of this Agreement by Seller and the consummation of the transactions described herein do not and will not, at Closing, with or without the giving of notice or passage of time or both, violate, conflict with or result in the breach of any terms or provisions of, or require any notice, filing, registration or further consent, approval, authorization under any instrument or agreement to which Seller may be bound and/or relating to or affecting the Real Property or portions thereof.
(o) Seller is a corporation duly organized and validly existing under the laws of the State of Minnesota, authorized to do business in the State of New Jersey and has the legal right, power and authority to enter into this Agreement and perform all of its obligations hereunder, and the execution of this Agreement by Buyer has been fully authorized by all requisite action.
(p) To Seller’s actual knowledge, Seller, its employees and subcontractors, to the extent it has constructed, installed, replaced or repaired improvements on the Entire Tract or off-site (as required by the Governmental Approvals), has constructed , installed, replaced or repaired such improvements in accordance with the provisions of each requirements of the respective LeasesGovernmental Approvals and Warranties (as hereinafter defined) and in accordance with the governmental agencies or utility companies having jurisdiction over such improvements.
(q) Other than those items listed on the Payables Schedule attached hereto as Exhibit F attached hereto and made a part hereof, which shall be updated as of the date of Closing, Seller has paid all professionals (including but not limited to attorneys, architects, engineers), subcontractors, suppliers, vendors for all work, equipment, materials, or supplies relating to the Entire Tract or improvements thereon. No subcontractor, supplier or vendor has filed or threatened to, file a claim under the New Jersey Construction Lien Law of any similar statute or took any other action seeking to be reimbursed for services, materials or supplies.
(r) As of the date of Closing, Seller has obtained and continued in effect, at its sole cost and expense, any and all governmental and quasi–governmental approvals, permits and licenses, including, but not limited to those approvals, permits and licenses listed in Exhibit G attached hereto and made a part hereof as are necessary or required to permit the construction, development and sale of the Real Property in accordance with the Intended Use ("Governmental Approvals"). All Governmental Approvals are valid and unappealable with all appeal periods having expired with no appeals pending. Simultaneously with Seller’s execution of this Agreement, Seller shall provide Buyer with full and complete copies of the Governmental Approvals.
Appears in 1 contract
Samples: Agreement of Sale (Rottlund Co Inc)
Seller’s Covenants, Representations and Warranties. In order accordance therewith, Seller shall execute a certificate at Closing for the purpose of restating and affirming the representations made in this section. As an inducement to induce Buyer Purchaser to enter into this Agreement and to purchase the PropertiesProperty, Seller makes the following covenants, agreementsrepresents, representations and warrantieswarrants that, all to the best of which shall survive the Closing Seller’s present knowledge, information and the purchase and sale of each of the respective Premisesbelief:
(a) Seller has obtained all necessary authorizations the right, power, authority, discretion and consents capacity to enable it to execute sell the Property in accordance with the terms, provisions and deliver conditions of this Agreement. Any individuals who may have executed this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction on behalf of the Improvements.Seller in their representative capacities are duly constituted, appointed or elected and authorized to do so; any consent required by the Seller’s members or shareholders to make such action effective has been obtained;
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending action, suit, proceeding or investigation involving the Seller or the Property which would become a cloud on the title to the Property or any portion thereof which questions the validity or enforceability of the transaction herein described or any action taken in connection with said transaction in any court or before or by any federal, district, county, or municipal department, commission, board, bureau, agency or other governmental agency;
(c) Seller has received no notice of, nor does Seller have knowledge of, any pending, threatened or other adverse claims which might affect the Property;
(d) On the Closing Date, Seller will not be indebted to any contractor, laborer, mechanic, materialman, architect, engineer or utility provider for work, labor or services performed or rendered, or for materials supplied or furnished, in connection with the Property for which any such person or entity could claim a lien against the Property;
(e) On the Closing Date, Seller warrants that there are no leases, licenses, option agreements, purchase agreements or other occupancy agreements, oral or written, which affect the Property. There are no parties in possession of, or claiming any possession to, any portion of the Property as tenants, holders of easements, licensees or, to the best of Seller’s knowledge, threatened litigation trespassers or otherwise except as may be set forth in documents recorded in the official public records of Fulton County;
(f) Seller will pay or cause to be paid promptly when due all city, state and county ad valorem taxes and similar taxes and assessments, all sewer and water charges and all other proceeding affecting governmental charges levied or imposed upon or assessed against the title to or Property between the use or operation of any of Effective Date and the Premises.Closing Date; and,
(g) On the Closing Date, Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986shall provide Purchaser with all keys, as amendeddoor openers, codes, and Seller shall certify its taxpayer identification number at Closingother similar equipment pertaining to the Property.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Covenants, Representations and Warranties. In order Seller, to induce Buyer to enter into this Agreement and purchase the Propertiesto complete Closing hereunder, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premiseswarranties to Buyer:
(a) Seller has obtained all necessary authorizations warrants and consents represents that (i) to enable it to execute its actual knowledge (actual knowledge meaning the knowledge of Xxxx Xxxxxxxx and deliver this Agreement the officers and to consummate directors of Seller and the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, individuals responsible for construction of the Improvements.
improvements at the Entire Tract) and except as otherwise disclosed in the Phase I Environmental Site Assessment dated November, 1996, prepared by T&M Associates for part of the Entire Tract and Freshwater Wetland Boundary Delineation Report, (bcollectively, the “Environmental Report”), no hazardous or toxic materials or substances or hazardous waste, residual waste or solid waste (as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act, and any other state or local environmental laws applicable thereto) are present on the Entire Tract (including, but not limited to, surface and ground water); (ii) Seller holdshas not been identified in any litigation, administrative proceedings or prior investigation as a potentially responsible party for any liability under any applicable environmental, hazardous or solid waste laws with respect to the Closing Date shall holdEntire Tract; (iii) except as otherwise disclosed in the Environmental Report, fee simple title to each Seller does not have any knowledge of the Premisesuse, free discharge, storage, transfer, handling, disposal or processing over, in, on or under the Entire Tract of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior any substances in violation of such laws; (iv) with respect to the ClosingEntire Tract, Seller has no actual knowledge of and has not received any notice from any governmental or quasi–governmental agency regarding any actual or potential violation of any applicable environmental, hazardous waste or solid waste laws. Simultaneous with its execution of this Agreement, Seller shall deliver a complete and accurate copy of the Environmental Report together with reliance letters from the consultant who prepared such report authorizing Buyer, its successors and assigns and Buyer’s lenders the right to use and rely upon such reports. Seller has no actual knowledge of any condition other environmental reports, tests or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms audits regarding any portion of the pertinent Lease at each Entire Tract existing elsewhere. To its actual knowledge, no landfill has occurred on any portion of the PremisesEntire Tract and no debris has been buried or placed on any portion of the Entire Tract.
(b) To its actual knowledge, to be conducted by Tenantthere were and are no underground storage tanks on the Entire Tract.
(c) Except for construction warranties with respect to the ImprovementsModel Leases (as hereinafter defined), there are no service other leases, tenancies, licenses or maintenance contracts affecting other rights of occupancy or use for all or any portion of the Premises Real Property and possession of the Real Property shall be given to which Buyer will be bound upon Closingunoccupied and free and clear of any leases (excepting the Model Leases) and claims to or rights of possession, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Leaseoccupancy or use.
(d) The Premises Seller is under no restriction which would prohibit or prevent the conveyance of title as herein required and Seller will do nothing or suffer anything which would impair or hinder the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable Seller's so ability to any of the Premises, and are not designated by any governmental agency to be in a flood plain areaconvey.
(ie) There shall exist Except for agreements of sale to third party purchasers, true and correct copies of which are listed in Exhibit K attached hereto and made a part hereof (“Outstanding Agreements”), there are no event whichother agreements of sale, with rights of first refusal, options to purchase, rights of reverter or rights of first offer relating to the giving of notice Real Property or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in fullany portion thereof.
(f) There is no claim, action, suit or proceeding, pending oror threatened, to Seller’s knowledgeagainst Seller or any portion of the Real Property, threatened litigation or other proceeding affecting the title relating to or arising out of the use ownership, management or operation of the Entire Tract or sale of Settled Lots or Lots in any court or before or by any governmental or public department, commission, board, bureau or agency. There is no claim, action, suit or proceeding, pending or threatened, against Seller relating to or arising out of Seller’s actions or inaction as Developer (as such term is defined in the PremisesAmended and Limited Public Offering Statement for The Xxxx at Masons Creek registered October 27, 1998 as amended by amendment dated June 23, 2000) (“POS”) or as Declarant (as such term is defined in the Declaration of Covenants, Easements, and Restrictions for The Xxxx at Masons Creek dated November 29, 1999 and recorded in Burlington County in Deed Book 5740, Page 234 (“Declaration”) in any court or before or by any governmental or public department, commission, board, bureau or agency.
(g) No assessments for public improvements have been made against the Real Property which will remain unpaid as of Closing on the Real Property and all assessments for work ordered, commenced or completed prior to the date of Closing shall have been paid by Seller in full at or prior to Closing. Buyer shall pay all assessments for work ordered or commenced after the date of Closing. Seller has not received written notice from any governmental agency of any special or other assessments for public improvements affecting the Real Property or any portion thereof.
(h) Seller has no notice nor actual knowledge of (i) pending annexation or condemnation proceedings affecting or which may affect, all or any portion of the Real Property or (ii) could result in the termination or reduction of the current access of the Real Property to existing public streets or of any reduction in/or to the sewer, water or other utility services presently serving or intended to serve the Real Property.
(i) Seller is not a “foreign person” within person as defined by the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986Foreign Investment in Real Property Tax Act. At Closing, as amended, and Seller shall certify its taxpayer identification number at Closingexecute and deliver to Buyer a Non-Foreign Affidavit in form satisfactory to Buyer and Title Company.
(hj) There are no adverse parties in possession of the Real Property.
(k) To Seller’s actual knowledge, no portion of the Real Property is (or there is no condition existing with respect to the Real Property) in violation of any applicable law, ordinance, code, rule, order regulation or requirement of any governmental or quasi-governmental authority and there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any outstanding and uncured notices of the Premisessuch violations.
(il) Each The Outstanding Agreements are full force and effect and are assignable to Buyer without the consent of the Premises are a separate parcel for real estate tax assessment purposesany third party.
(jm) All To its actual knowledge, there is no pending or anticipated reassessment or reclassification of any or all of the financial data regarding the construction, ownership and operation of each Real Property for state or local real property taxation purposes other than that caused by filing of the Premises that Seller has provided to Buyer is materially trueSubdivision Plans for Sections 8, complete 9 and correct10 of the Real Property.
(kn) Seller has and shall continue to have at Closing the full power and authority to execute and deliver this Agreement and all other documents now of hereafter to be executed and delivered by Seller pursuant to this Agreement and to consummate the transactions contemplated thereby.
(o) The Improvements have authorization, execution and delivery of this Agreement by Seller and the consummation of the transactions described herein do not and will not, at Closing, with or without the giving of notice or passage of time or both, violate, conflict with or result in the breach of any terms or provisions of, or require any notice, filing, registration or further consent, approval, authorization under any instrument or agreement to which Seller may be bound and/or relating to or affecting the Real Property or portions thereof.
(p) Seller is a corporation duly organized and validly existing under the laws of the State of Minnesota, authorized to do business in the State of New Jersey and has the legal right, power and authority to enter into this Agreement and perform all of its obligations hereunder, and the execution of this Agreement by Buyer has been constructed fully authorized by all requisite action.
(q) Seller has duly registered the Entire Tract in accordance with the requirements of the New Jersey Planned Real Estate Development Full Disclosure Act (N.J.S.A. 45:22A-21 et seq.) and the regulations promulgated thereunder, and has complied with the terms and provisions of each the same in its sale of any of the respective LeasesLots or Settled Lots to third party purchasers.
(r) To Seller’s actual knowledge, Seller, its employees and subcontractors, to the extent it has constructed, installed, replaced or repaired improvements on the Entire Tract or off-site (as required by the Governmental Approvals), has constructed , installed, replaced or repaired such improvements in accordance with the requirements of the Governmental Approvals and Warranties (as hereinafter defined) and in accordance with the governmental agencies or utility companies having jurisdiction over such improvements.
(s) Other than those items listed on the Payables Schedule attached hereto as Exhibit R attached hereto and made a part hereof, which shall be updated as of the date of Closing, Seller has paid all professionals (including but not limited to attorneys, architects, engineers), subcontractors, suppliers, vendors for all work, equipment, materials, or supplies relating to the Entire Tract or improvements thereon. No subcontractor, supplier or vendor has filed or threatened to, file a claim under the New Jersey Construction Lien Law of any similar statute or took any other action seeking to be reimbursed for services, materials or supplies.
(t) Seller represents and warrants that true, correct and complete copies of the Model Lease dated June 30, 2000 (with Assignment with Notification dated June 30,2000 addressed to Firstar Bank of Iowa), Exclusive Sales Agreement (“ESA”), Motivation Agreement dated June 30, 2000 as amended by letter dated October 30, 2000 are attached hereto as part of Exhibit L and are collectively known as the “Lease Documents.”. The Lease Documents are in full force and effect, and Seller has no knowledge of or notice of any default under the any of the Lease Documents. Any defaults by Seller under any of the Lease Documents shall be cured by Seller, at its sole cost and expense, prior to Closing. Seller shall provide Buyer with a copy of any notice regarding the Lease Documents within two (2) days after Seller’s receipt of same. At Closing, Seller shall assign its rights under the Lease Documents to Buyer. Seller shall pay all costs and expenses due under the Lease Documents up to the date of Closing. Buyer shall pay all costs and expenses under the Lease Documents from the date of Closing. At Closing, Seller shall deliver an Assignment of Lease Documents substantially in the form attached hereto and made a part hereof as Exhibit M and a Non-Disturbance Agreement reasonably acceptable to the parties. The calculation of the Purchase Price does not include the Model Homes since the Model Homes are owned by Strategic Capital Resources, Inc. (“Strategic”). Furthermore, Seller shall assign at Closing with Strategic’s consent, its rights and obligations under the Exclusive Sales Agreement dated June 30, 2000 and Motivation Agreement dated June 30, 2000, true and correct copies of which are also attached as part of Exhibit L.
(u) As of the date of Closing, Seller has obtained and continued in effect, at its sole cost and expense, any and all governmental and quasi–governmental approvals, permits and licenses, (except for the payment of sewer and water connection fees for the Vacant Lots, building permits and filing fees necessary for the recording of the Plans for Sections 8, 9 and 10), including, but not limited to those approvals, permits and licenses listed in Exhibit J attached hereto and made a part hereof as are necessary or required to permit the construction, development and sale of the Real Property in accordance with the Intended Use ("Governmental Approvals"). All Governmental Approvals are valid and unappealable with all appeal periods having expired with no appeals pending. Simultaneously with Seller’s execution of this Agreement, Seller shall provide Buyer with full and complete copies of the Governmental Approvals.
Appears in 1 contract
Samples: Agreement of Sale (Rottlund Co Inc)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following hereby covenants, agreements, representations represents and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premiseswarrants that to Seller's knowledge:
(a) Seller has obtained The documents delivered to Buyer pursuant to Section 2.01 hereof are true, correct and complete in all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including material respects without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvementsintentional alteration or omission.
(b) Seller holds, There are not pending any special assessments or prior condemnation actions with respect to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by TenantProperty.
(c) Except for construction warranties with respect This Agreement has been, and all the documents to the Improvementsbe delivered by Seller to Buyer at closing will be, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Leaseduly authorized.
(d) The Premises This Agreement, and the proposed use thereof transfer of the Property by Tenant and the condition thereof do Seller, shall not violate any applicable deed restrictionscontract, zoning agreement or subdivision regulations, urban redevelopment plans, local, state instrument to which Seller is a party or federal environmental law by which the Seller or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain areaProperty is bound.
(ie) There shall exist no event whichAny and all improvements to the Property, with and any services the giving nonpayment of notice which could result in the imposition of mechanics' liens, have been or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, at closing will have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) The Seller is not a “"foreign person” " within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986.
(g) There are no existing or proposed eminent domain proceedings with respect to the Property.
(h) There are no actions or proceedings, including actions or proceedings related to environmental matters, pending against Seller or with respect to the Property or any tenant at the Property before any court or administrative agency.
(i) Seller has received no written notice of, and has no knowledge of, any violation of any zoning or other land use law or regulation regarding the physical condition of the Property.
(j) Seller owns the Property in fee simple, free and clear of all liens and encumbrances except those matters which are of public record or which are disclosed in writing to Buyer in the Title Commitment or the Survey, or otherwise disclosed in writing by Seller to Buyer or independently discovered by Buyer.
(k) Seller has received no written notice of, and has no knowledge of, any violation of any Environmental Requirements (defined herein) with respect to the existence, storage, use or other handling of any Hazardous Materials (defined herein) at the Property. "Environmental Requirements" shall mean all applicable present statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, concessions, franchises and similar items of all governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof and all applicable judicial and administrative and regulatory decrees, judgments and orders relating to the protection of human health or the environment, including, without limitation all requirements, including but not limited to those pertaining to reporting, licensing, permitting, investigation and remediation of emissions, discharges, releases or threatened releases of Hazardous Materials into the air, surface water, ground water or land. "Hazardous Materials" shall mean (i) any flammable, explosive or radioactive materials, hazardous wastes, toxic substances or related materials, including, without limitation, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic Substances Control Act, 15 U.S.C., Section 2601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., and in the regulations adopted and publications promulgated pursuant to said laws, (ii) those substances listed in the United States Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as hazardous substances (40 C.F.R. Part 302 and amendments thereto), (iii) those substances defined as "hazardous wastes," "hazardous substances" or "toxic substances" in any similar federal, state or local laws or in the regulations adopted and publications promulgated pursuant to any of the foregoing laws or which otherwise are regulated by any governmental authority, agency, department, commission, board or instrumentality of the United States of America, the State of Texas or any political subdivision thereof, (iv) any pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials, or substances within the meaning of any other applicable federal, state, or local law, regulation, ordinance, or requirement (including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as amended; (v) petroleum or any by-products thereof; (vi) any radioactive material, including any source, special nuclear or by-product material as defined at 42 U.S.C. Sections 2011 et seq., as amended, and Seller shall certify its taxpayer identification number at Closingin the regulations adopted and publications promulgated pursuant to said law; (vii) asbestos in any form or condition; and (viii) polychlorinated biphenyls.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Seller’s Covenants, Representations and Warranties. In order Seller represents and warrants to induce Buyer (which representations and warranties shall be true as of the date of this Agreement and as of the Closing Date, and that:
10.1 Seller has obtained any and all consents from partners and/or shareholders required to permit the transactions contemplated by this Agreement including the sale of the Property to Buyer.
10.2 Except as otherwise expressly provided herein, there will be at Closing no contracts or agreements affecting the Property which would be binding on Buyer following Closing other than the Service Contracts (to the extent Buyer expressly agrees to assume same), Space Leases and Permitted Exceptions.
10.3 The signatories to this Agreement on behalf of Seller have the power and authority to enter into this Agreement and to bind Seller to the provisions hereof.
10.4 Seller has full power and authority to enter into, and to perform its obligations under, this Agreement. Without limiting the generality of the foregoing, no party holds a right of first offer, right of first refusal or other purchase option with respect to all or any part of the PropertiesProperty.
10.5 Except as set forth in that certain letter (dated September 25, Seller makes 2012, sent by the following covenants, agreements, representations and warranties, all State of New York Department of Transportation) a copy of which shall survive has been given to Buyer prior to the Closing and date hereof, there is no claim, action, suit or proceeding pending or threatened against, by or otherwise affecting Seller or the purchase and sale Property or any portion thereof or relating to or arising out of each ownership, management or operation of the respective Premises:Property in any court or before or by any federal, state, county, township or municipal department, commission, board, bureau or agency or other government instrumentality that adversely affects or would affect Buyer.
(a) 10.6 All of the obligations of Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate under any contracts affecting the transaction contemplated hereby, including without limitation all authorizations and consents required Property which ought to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or fulfilled prior to the Closing Date shall holdor arising from conditions existing prior thereto will be timely performed by Seller.
10.7 The Rent Roll, fee simple title I&E Statements and Operating Statements annexed hereto as Exhibit 7 are, to each the best of Seller’s knowledge and belief, true, accurate and complete in all material respects and the PremisesSpace Leases described in Exhibit 2 (the "Lease Schedule"), free true, correct and complete copies of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid furnished to Buyer, are all of the leases, licenses and discharged at rental agreements affecting the Property which are in Seller’s possession or prior under Seller’s control on the date hereof. Seller further represents and warrants that:
(i) the information relating to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict Space Leases as set forth in the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.Schedule is accurate;
(cii) Except for construction warranties no amendments, oral or written, have been made with respect to the ImprovementsSpace Leases, other than those listed in the Lease Schedule;
(iii) none of the lessees under the Space Leases have made any security deposits thereunder, other than as set forth in the Lease Schedule; and
(iv) there are no service or maintenance contracts affecting rights of use for any portions of the Premises Property now in effect or hereafter to which Buyer will be bound upon Closingcome into effect, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant the rights under the LeaseSpace Leases or made in accordance with Permitted Exceptions; and no lessee has any option, agreement of sale, purchase option, extension or renewal, or any other right, title or interest in the Property acquired directly through Seller, other than its rights of use as aforesaid.
10.8 Attached hereto as Exhibit 3 (dthe "Service Contract Schedule") The Premises is a true, correct and complete list of all Service Contracts respecting the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any operation of the PremisesProperty. The Service Contracts are currently in full force and effect and Seller has performed or, and are if performance is not designated by any governmental agency to be in a flood plain areacurrently required, will perform all its obligations thereunder.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) 10.9 Seller is not a “"foreign person” " within the meaning of Section 1445(f)(3) 1445 of the United States Internal Revenue Code of 1986Code, as amended, or its regulations.
10.10 To the best of Seller’s knowledge and belief, no part of the Property is in material violation of applicable laws, codes, or regulations, including (without limitation) those related to health, safety, access, and/or the environment.
10.11 The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby will not violate any judgment, order, injunction, decree, regulation or ruling of any court or Authority or conflict with, result in a breach of, or constitute a default under the organizational documents of Seller, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease or other material agreement or instrument to which Seller is a party or by which it is bound.
10.12 Neither Seller nor any person or entity holding any controlling interest whatsoever in it (whether directly or indirectly), is named on any list of persons, entities, and governments issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 - Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (“Executive Order 13224”), as in effect on the date hereof, or any similar list issued by OFAC or any other department or agency of the United States of America (collectively, the “OFAC Lists”), or is included in, owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or otherwise associated with any of the persons or entities referred to or described in any OFAC Lists.
10.13 Metro Self Storage is the sole managing agent for the Property. If prior to Closing Buyer becomes aware of a material breach of any of the foregoing, Buyer’s sole rights shall be to terminate this Agreement as set forth in Section 6.3, or to waive such breach and close without any reduction in the Purchase Price by reason thereof, in which event Seller shall certify its taxpayer identification number at Closing.
(h) To have no post-Closing liability for such breach. References to “the best of Seller’s knowledge,” “Seller’s knowledge,” “to the best of Seller’s actual knowledge” and such other similar phrases shall refer only to the current actual knowledge of the Designated Representative (as hereinafter defined) of Seller following due inquiry where the Designated Representative reasonably believes, there are no federaland shall not be construed, stateby imputation or otherwise, county to refer to the knowledge of Seller or municipal plans to restrict or change access from any highway or road affiliate of Seller, to any property manager, to any other partner, officer, agent, manager, representative or employee of Seller or any affiliate thereof. As used herein, the Premisesterm “Designated Representative” shall refer to Xxxxxxx Xxxxx.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the PropertiesPremises, Seller Seller, jointly and severally, makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts or other agreements affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place and on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation Environmental Laws or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the LeasesLease, if any, have been paid in full.
(f) There is no pending or, to Seller’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(g) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(h) To Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(kj) The Improvements Except as reflected in any Phase I or Phase II environmental site assessments pertaining to the Premises as provided by Seller to Buyer, or otherwise obtained by Lender from a reputable licensed source, no Hazardous Materials are, will be, or to the best of Seller’s knowledge, have been constructed been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any Environmental Laws; the Premises are in material compliance with all Environmental Laws; any business currently operated on the Premises has disposed of its waste in accordance with all Environmental Laws; Seller has obtained and is in material compliance with all permits required by Environmental Laws necessary for the provisions of each conduct of the respective Leasesbusiness currently conducted on the Premises and the ownership of the Premises and all such permits are in full force and effect; and, there are no active or abandoned aboveground or underground storage tanks at the Premises.
(k) Seller has no notice of any pending Environmental Claim arising out of the condition of the Premises or any notice of any pending violation of Environmental Law with respect to the Premises.
(l) The Property is contained in one or more separate parcels for real estate tax assessment purposes, which parcels do not contain any land other than the Property. All of the representations, warranties and agreements of Seller set forth in this Section 11 shall be true upon the execution of this Agreement and shall be reaffirmed and repeated in writing at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date for a period of one (1) year after the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (Air Industries Group)
Seller’s Covenants, Representations and Warranties. In order (a) As a material inducement to induce Buyer Purchaser to enter into this Agreement and purchase to pay the PropertiesPurchase Price for the Property as set forth herein, and except as otherwise set forth in Schedule 6 delivered to Purchaser concurrently herewith (“Seller’s Disclosure Schedule”), Seller makes the following hereby covenants, agreementswarrants and represents to Purchaser, representations as of the date hereof and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
Date, as follows (a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated herebycollectively, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.“Seller’s Representations”):
(i) There shall exist no event whichEach Seller is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Georgia. Seller has the power and authority to own the Property.
(ii) Seller has the necessary power and authority to make, execute, deliver and perform this Agreement and the other instruments to be executed and delivered by it pursuant hereto (the “Seller’s Transaction Documents”). Such execution, delivery and performance have been duly authorized by all necessary action on the part of Seller and its members and managers, as applicable.
(iii) Seller’s Transaction Documents, when executed by all Parties, will constitute the valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium and other laws now or hereafter in effect affecting creditors’ rights and remedies or by equitable principles.
(iv) The authorization, execution and delivery of this Agreement and the Seller’s Transaction Documents and the consummation of the transactions contemplated hereby and thereby by the Seller, do not and will not, with or without the giving of notice or the passage of time or bothboth (A) violate or result in the breach of any term or provision of or require any notice, filing or consent under (1) the certificate of formation or operating agreement of the Seller or (2) except as set forth on Schedule 6(a)(iv), any statutes, laws, rules, regulations, ordinances, licenses or permits of any governmental body, authority or agency applicable to the Seller (except for such notices to, and consents and approvals of, state governmental and regulatory authorities applicable to the change of ownership of the Facility); (B) except as set forth on Schedule 6(a)(iv), conflict with, result in the material breach of any term or provision of, require any notice or consent under, give rise to a right of termination of, constitute a default under, result in the acceleration of, or give rise to a right to accelerate any obligation under any material loan agreement, mortgage, indenture, financing agreement, lease or any material agreement to which the Seller is a party or by which the Seller may be bound (except as shall be paid in full at Closing); or (C) result in any lien, claim, encumbrance or restriction on any of the Property (except for Permitted Exceptions, as hereafter defined); provided, however, that Seller does not make any representation regarding any requirements of any federal or state antitrust laws in connection with the transactions contemplated hereby.
(v) Seller has good and marketable title to the Property, which at Closing will be free and clear of all tenancies, security interests, liens and encumbrances, except Permitted Exceptions.
(vi) There are no actions, suits or legal, administrative, arbitration or other proceedings or governmental investigations pending or, to Seller’s actual knowledge, threatened against Seller before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign which affect or relate to the Property. Seller has not received written notice that it is a party to or subject to provisions of any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which affects or relates to the Property. There are no insolvency proceedings of any kind including without limitation, bankruptcy, receivership, reorganization, dissolution or arrangement with creditors, voluntary or involuntary, affecting Seller or the Facility, and Seller has not taken any action in contemplation of, or which would constitute an Event the basis for, the institution of Default any such proceedings.
(vii) Seller has not received written notice that the Real Property is in violation of any federal, state or local laws, ordinances, rules, regulations, orders or directives or under common law relating to the respective Lease environment (“Environmental Laws”). To Seller’s knowledge, there are no underground or above ground storage tanks located in or about the Real Property. Seller has provided to Purchaser (to the extent in existence and in Seller’s possession) the following: (A) a copy of each permit or pending application for any permit and each of order, judgment, decree, consent agreement or similar document imposing obligations on Seller issued pursuant to or in connection with any Environmental Law with respect to the PremisesProperty; and (iiB) all leasing commissions and fees with respect to each of the Leasescopies, if any, have been paid of all material reports in fullthe custody or control of Seller, including, without limitation, “Phase I,” “Phase II,” “environmental assessment” and similar reports, relating to the environmental condition of the Property or the compliance of Seller with Environmental Laws with respect to the Property, and (C) documentation, if applicable, demonstrating the full compliance of Seller with any applicable Environmental Laws that condition, restrict, or prohibit the transfer, sale, lease or assignment of the Property, including, without limitation, any so-called “environmental property transfer laws”.
(fviii) Except as otherwise set forth on Schedule 6(a)(viii), the Seller is not a party to, nor is the Property subject to, any lease, sublease, agreement, contract, commitment, understanding or arrangement affecting or relating to the Property or the use, occupancy or benefit thereof, which, upon the Closing hereunder, will be binding upon the Facility or the Purchaser, except for the Permitted Exceptions. Concurrent with the Closing hereunder, Seller shall terminate the existing lease(s) with Existing Operator for the Facility (the “Existing Lease”).
(ix) Subject to the terms and conditions set forth herein, Seller shall deliver the Property on the Closing Date in substantially the same condition as on the date hereof, normal wear and tear excepted.
(x) There is no pending or, to Seller’s knowledge, threatened threatened, request, application or proceeding to alter or restrict the zoning or otherwise restrict the current or any planned use of the Property. Seller has received no written notice of any litigation or other governmental proceeding affecting the title to seeking eminent domain or the use rezoning of all or operation of any portion of the PremisesProperty or which adversely affects the operations of the Facility.
(gxi) Seller has granted no rights of first refusal or options to purchase the Property or any portion or portions thereof in effect as of the date of this Agreement.
(xii) To Seller’s knowledge, there are no (1) pending or threatened special assessments affecting the Property or (2) contemplated improvements affecting the Property that may result in special assessments affecting the Property.
(xiii) All contractors and subcontractors and other persons or entities engaged by Seller who have performed work on or supplied materials to any portion of the Property have been fully paid for all amounts due and owing, or will be paid as such amounts come due, and, to Seller’s actual knowledge, there are no claims against the Property arising from any non-payment by Seller which may give rise to a mechanic’s lien against the Property or any portion thereof.
(xiv) Seller has timely filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges except to the extent any non-payment of taxes or governmental charges would not affect any successor owner of the Property.
(xv) To Seller’s knowledge, Seller is not a party or subject to or otherwise in material default under any contract, lease or other agreement, judgment, order or decree of any governmental entity, or any settlement agreement that pertains to the Property.
(xvi) All insurance coverage for fire, liability, worker’s compensation, and other forms of insurance applicable to the Property or the Facility or the business conducted at the Facility (i) are in full force and effect, and (ii) have not been subject to any lapse in coverage.
(xvii) Seller has not received notice of any material violation of any other law or municipal ordinance, order or requirement noted or issued against the Property by any governmental authority having jurisdiction over the Property, which has not been cured, corrected or waived as of the Closing Date.
(xviii) The Personal Property together with the personal property being transferred to New Operator pursuant to the OTA is all of the personal property currently being utilized for the current operation of the Facility. No notice has been received of any written claim, requirement or demand of any licensing or certifying agency to rework or redesign the Property so as to conform to or comply with any existing law, code or standard which has not been fully satisfied prior to the date hereof. Seller has been granted no waivers of physical plant deficiencies or life safety code requirements with respect to the Property by any governmental or regulatory authority.
(xix) Seller is not a “foreign person” within the meaning for purposes of Section 1445(f)(3) § 1455 of the Internal Revenue Code of 1986, as amended.
(xx) Seller has provided to Purchaser true and correct copies of the updated year-to-date financial statements of the Facility and annual financial statements for the calendar years ending December 31, 2021, 2022, and 2023, and all monthly financial statements through October 31, 2024 (collectively, the “Financial Statements”). The Financial Statements (i) have been prepared from the books and records of Seller or Existing Operator in conformity in all material respects with United States Generally Accepted Accounting Principles, applied on a consistent basis throughout the period involved, except that the unaudited statements are without footnotes and are subject to normal yearend adjustments, (ii) present fairly in all material respects the financial position of the Facility as of the date of the Financial Statements and the results of operations and the cash flows of the Facility for the periods ending on the date of the Financial Statements, and (iii) to Seller’s actual knowledge, are true, complete and correct, in all material respects. Except as set forth in the most recent Financial Statements, there have been no events, transactions or information related to the Facility or the Facility’s operations or the Property which, singly or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(xxi) Except as otherwise set forth on Schedule 6(a)(xxi), Sxxxxx has not engaged any agent, broker, investment banker, person or firm who is entitled to a commission or fee in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated herein. To the extent any agent, broker, investment banker, person or firm has acted on behalf of Seller or under the authority of Seller, Seller shall be responsible for any such broker’s or finder’s fee or any other commission or similar fee payable directly or indirectly to such agent, broker, investment banker, person or firm in connection with any of the transactions contemplated herein.
(xxii) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, NONE OF SELLER, NOR ANY OF SELLER’S AFFILIATES OR REPRESENTATIVES (NOR ANY OTHER PERSON), HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO SELLER, THE FACILITY, THE PROPERTY OR SELLER’S BUSINESSES OR OPERATIONS (INCLUDING SELLER’S LIABILITIES, CONDITIONS (FINANCIAL OR OTHERWISE) OR PROSPECTS), ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN PARTICULAR, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, NONE OF SELLER, NOR ANY OF SELLER’S AFFILIATES OR REPRESENTATIVES (NOR ANY OTHER PERSON), HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO (A) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR PROSPECT INFORMATION RELATING TO ANY SELLER, THE PROPERTY, OR ANY SELLER’S BUSINESSES OR OPERATIONS OR (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, ANY ORAL OR WRITTEN INFORMATION, OTHER THAN INFORMATION SET FORTH IN THIS AGREEMENT, PRESENTED TO PURCHASER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES IN THE COURSE OF (I) THEIR DUE DILIGENCE INVESTIGATION OF ANY SELLER, THE FACILITY, THE PROPERTY OR ANY SELLER’S BUSINESSES OR OPERATIONS, (II) THE NEGOTIATION OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS OR (III) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE TRANSACTION DOCUMENTS. As used in this Agreement, the phrase “to Seller’s knowledge”, or any words or phrases of similar import, shall mean the current, actual knowledge of Axxx Xxxxxxx and each Facility administrator, after due inquiry. For the avoidance of doubt, it is expressly understood and agreed that such person will not have any personal liability under this Agreement on account of the representations and warranties set forth herein or otherwise.
(b) Subject to the balance of this Section 6(b), all of Seller’s Representations shall be true, correct and complete in all respects, both as of the date hereof and as of the Closing Date, and Seller shall certify its taxpayer identification number in writing at ClosingClosing that each and all of said Seller’s Representations are true, correct and complete as of and with respect to that date in all material respects as hereinafter provided. At any time, and from time to time on or prior to the Closing Date, Seller may, by written notice to Purchaser, supplement or amend the schedules (collectively, a “Disclosure Update”). Any Seller’s Disclosure Schedules delivered after the Effective Date shall constitute a Disclosure Update for purposes of this Section 6(b). The representations, warranties, and schedules will be deemed supplemented and amended by any Disclosure Update in order to cause the representations and warranties of Seller to be true as of the date hereof and the Closing Date; provided, however, that no Disclosure Update shall have any effect for the purpose of determining the satisfaction of the conditions set forth in Section 9 (other than an update to representations and warranties for purposes of Section 9(a)). Purchaser and any party seeking indemnity under this Agreement shall be barred from seeking indemnity with respect to any prior and updated versions of the schedules and/or virtual data room, unless: (i) such proposed schedule or Disclosure Update had or would have, individually or in aggregate with the effect of items disclosed in other supplemental schedules or Disclosure Updates which were first submitted after the Effective Date, a Material Adverse Effect, and (ii) within ten (10) business days after receipt of such proposed supplemental schedule or Disclosure Update, Purchaser provides written notice to Seller reasonably detailing the objection thereof and changes in such proposed schedule or Disclosure Update which would make the same acceptable. Should the Parties not be able to resolve written objections within ten (10) business days thereafter, then either Party may withdraw from this Agreement and terminate it subject to the provisions of this Agreement without any obligation or liability of any sort and this Agreement shall be treated as never having been executed or delivered, subject to Section 15. In the event the Closing occurs, any such newly completed schedules or supplements shall be effective, and they shall represent the final version of the schedule for all purposes.
(hc) To Seller’s actual knowledgeFrom the date hereof and until the earlier termination of this Agreement or the Closing, there are no federal, state, county Seller shall (except as otherwise consented to or municipal plans to restrict or change access from any highway or road to any of the Premises.approved by Purchaser in writing):
(i) Each Not create or permit to become effective any lien or encumbrance or charge upon the Property (other than Permitted Exceptions or items to be discharged or released in advance of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.or at Closing);
Appears in 1 contract
Samples: Purchase and Sale Agreement (Selectis Health, Inc.)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, A. Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each as part of the respective Premisesconsideration therefore, represent, warrant, and covenant with Xxxxx and its successors and assigns that:
(a1) Seller has obtained all necessary authorizations warrants and consents represents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending orthat, to Seller’s knowledge, without investigation, no entity or person has, at any time:
a) released" or actively or passively consented to the "release" or "threatened litigation or other proceeding affecting the title to or the use or operation release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Property or adjacent tracts in violation of applicable laws; or
b) taken any action in "response" to a "release" in connection with the PremisesProperty or adjacent tracts; or
c) otherwise engaged in any activity or omitted to take any action which could subject Seller or Buyer to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state environmental laws.
(g2) Seller has the present full authority and power to execute this Agreement and, on or prior to the Date of Closing, Seller shall have the full authority and power to close the sale of the Property.
(3) As of the Closing Date there will be no outstanding or unpaid claims, actions or causes of action related to any transaction or obligation entered into or incurred by Seller with respect to the Property prior to the date hereof.
(4) Seller is not a “foreign person” within the meaning of Section person as defined in §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closingor regulations issued thereunder.
(h5) To Seller’s actual knowledge, there are is no federalaction, statelitigation, county investigation, condemnation or municipal plans other proceedings of any kind pending or threatened against Seller with respect to restrict or change access from any highway or road to any of the PremisesProperty.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.
Appears in 1 contract
Samples: Vacant Land Purchase Agreement
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, A. Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each as part of the respective Premisesconsideration therefore, represent, warrant, and covenant with Xxxxx and its successors and assigns that:
(a1) Seller has obtained all necessary authorizations warrants and consents represents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the respective Lease for each of the Premises; and (ii) all leasing commissions and fees with respect to each of the Leases, if any, have been paid in full.
(f) There is no pending orthat, to Seller’s knowledge, without investigation, no entity or person has, at any time:
a) released" or actively or passively consented to the "release" or "threatened litigation or other proceeding affecting the title to or the use or operation release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Property or adjacent tracts in violation of applicable laws; or
b) taken any action in "response" to a "release" in connection with the PremisesProperty or adjacent tracts; or
c) otherwise engaged in any activity or omitted to take any action which could subject Seller or Buyer to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state environmental laws.
(g2) Seller has the present full authority and power to execute this Agreement and, on or prior to the Date of Closing, Seller shall have the full authority and power to close the sale of the Property.
(3) As of the Closing Date there will be no outstanding or unpaid claims, actions or causes of action related to any transaction or obligation entered into or incurred by Seller with respect to the Property prior to the date hereof.
(4) Seller is not a “foreign person” within the meaning of Section person as defined in §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closingor regulations issued thereunder.
(h5) To Seller’s actual knowledge, there is no action, litigation, investigation, condemnation or other proceedings of any kind pending or threatened against Seller with respect to the Property.
(6) Seller owns good and marketable title to the Property, free and clear of all liens and encumbrances, except for permitted encumbrances and matters that will be removed or satisfied prior to Closing Date.
(7) Seller has not entered into any other contracts for the sale or lease of the Property, nor are there any rights of first refusal or options to purchase or lease the Property or any other rights of others that might prevent the consummation of this Agreement.
(8) Seller has not received any written notice that any structure on the Property is not in compliance with health, fire, safety, building and zoning laws, ordinances, rules, regulations or orders of any governmental authority having jurisdiction or, if Seller has received such notice, it shall promptly so notify Buyer.
(9) Seller has received no written notice of actual or threatened special assessments or reassessments of the Property, or, if Seller has received such notice, it shall promptly so notify Buyer.
(10) To Seller’s knowledge there have not been and currently there are no underground storage tanks on the Property.
(11) Other than existing low areas which may collect water, Seller is not aware that there exists or may exist on the Property any portion of a wetland which may be regulated by the Army Corps of Engineers, the Minnesota Department of Natural Resources or any other federal, statestate or local government agency.
B. PROTECTED HISTORICAL SITES. [Select either (1) or (2) below:]
C. All of Seller’s covenants, county representations and warranties in this Agreement shall be true as of the date hereof and of the Closing Date, and shall be a condition precedent to the performance of Xxxxx's obligations hereunder. If Xxxxx discovers that any such covenant, representation, or municipal plans warranty is not true, Buyer may elect prior to restrict or change access from any highway or road Closing, in addition to any of its other rights and remedies, to cancel this Agreement, or Buyer may postpone the Premises.
Closing Date up to ninety (i90) Each of the Premises are a separate parcel days to allow time for real estate tax assessment purposes.
(j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided correction. If Buyer elects to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance proceed with the provisions Closing following such discovery, Buyer shall be deemed to have waived its rights to assert a claim against Sellers arising from the inaccuracy or untruthfulness of each of the respective Leasesany such covenant, representation, or warranty.
Appears in 1 contract
Samples: Vacant Land Purchase Agreement
Seller’s Covenants, Representations and Warranties. In order (a) As a material inducement to induce Buyer Purchaser to enter into this Agreement and purchase to pay the PropertiesPurchase Price for the Property as set forth herein, and except as otherwise set forth in Schedule 6 delivered to Purchaser concurrently herewith (“Seller’s Disclosure Schedule”), Seller makes the following hereby covenants, agreementswarrants and represents to Purchaser, representations as of the date hereof and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
Date, as follows (a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated herebycollectively, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent Lease at each of the Premises, to be conducted by Tenant.
(c) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts which Seller intends to keep in place on which Seller shall remain liable as Tenant under the Lease.
(d) The Premises and the proposed use thereof by Tenant and the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.“Seller’s Representations”):
(i) There shall exist no event whichEach Seller is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Georgia. Seller has the power and authority to own the Property.
(ii) Seller has the necessary power and authority to make, execute, deliver and perform this Agreement and the other instruments to be executed and delivered by it pursuant hereto (the “Seller’s Transaction Documents”). Such execution, delivery and performance have been duly authorized by all necessary action on the part of Seller and its members and managers, as applicable.
(iii) Seller’s Transaction Documents, when executed by all Parties, will constitute the valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium and other laws now or hereafter in effect affecting creditors’ rights and remedies or by equitable principles.
(iv) The authorization, execution and delivery of this Agreement and the Seller’s Transaction Documents and the consummation of the transactions contemplated hereby and thereby by the Seller, do not and will not, with or without the giving of notice or the passage of time or bothboth (A) violate or result in the breach of any term or provision of or require any notice, filing or consent under (1) the certificate of formation or operating agreement of the Seller or (2) except as set forth on Schedule 6(a)(iv), any statutes, laws, rules, regulations, ordinances, licenses or permits of any governmental body, authority or agency applicable to the Seller (except for such notices to, and consents and approvals of, state governmental and regulatory authorities applicable to the change of ownership of the Facility); (B) except as set forth on Schedule 6(a)(iv), conflict with, result in the material breach of any term or provision of, require any notice or consent under, give rise to a right of termination of, constitute a default under, result in the acceleration of, or give rise to a right to accelerate any obligation under any material loan agreement, mortgage, indenture, financing agreement, lease or any material agreement to which the Seller is a party or by which the Seller may be bound (except as shall be paid in full at Closing); or (C) result in any lien, claim, encumbrance or restriction on any of the Property (except for Permitted Exceptions, as hereafter defined); provided, however, that Seller does not make any representation regarding any requirements of any federal or state antitrust laws in connection with the transactions contemplated hereby.
(v) Seller has good and marketable title to the Property, which at Closing will be free and clear of all tenancies, security interests, liens and encumbrances, except Permitted Exceptions.
(vi) Except as otherwise set forth on Schedule 6(a)(vi), there are no actions, suits or legal, administrative, arbitration or other proceedings or governmental investigations pending or, to Seller’s actual knowledge, threatened against Seller before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign which affect or relate to the Property. Seller has not received written notice that it is a party to or subject to provisions of any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which affects or relates to the Property. There are no insolvency proceedings of any kind including without limitation, bankruptcy, receivership, reorganization, dissolution or arrangement with creditors, voluntary or involuntary, affecting Seller or the Facility, and Seller has not taken any action in contemplation of, or which would constitute an Event the basis for, the institution of Default any such proceedings.
(vii) Seller has not received written notice that the Real Property is in violation of any federal, state or local laws, ordinances, rules, regulations, orders or directives or under common law relating to the respective Lease environment (“Environmental Laws”). To Seller’s knowledge, there are no underground or above ground storage tanks located in or about the Real Property. Seller has provided to Purchaser (to the extent in existence and in Seller’s possession) the following: (A) a copy of each permit or pending application for any permit and each of order, judgment, decree, consent agreement or similar document imposing obligations on Seller issued pursuant to or in connection with any Environmental Law with respect to the PremisesProperty; and (iiB) all leasing commissions and fees with respect to each of the Leasescopies, if any, have been paid of all material reports in fullthe custody or control of Seller, including, without limitation, “Phase I,” “Phase II,” “environmental assessment” and similar reports, relating to the environmental condition of the Property or the compliance of Seller with Environmental Laws with respect to the Property, and (C) documentation, if applicable, demonstrating the full compliance of Seller with any applicable Environmental Laws that condition, restrict, or prohibit the transfer, sale, lease or assignment of the Property, including, without limitation, any so-called “environmental property transfer laws”.
(fviii) Except as otherwise set forth on Schedule 6(a)(viii), the Seller is not a party to, nor is the Property subject to, any lease, sublease, agreement, contract, commitment, understanding or arrangement affecting or relating to the Property or the use, occupancy or benefit thereof, which, upon the Closing hereunder, will be binding upon the Facility or the Purchaser, except for the Permitted Exceptions. Concurrent with the Closing hereunder, Seller shall terminate the existing lease(s) with Existing Operator for the Facility (the “Existing Lease”).
(ix) Subject to the terms and conditions set forth herein, Seller shall deliver the Property on the Closing Date in substantially the same condition as on the date hereof, normal wear and tear excepted.
(x) There is no pending or, to Seller’s knowledge, threatened threatened, request, application or proceeding to alter or restrict the zoning or otherwise restrict the current or any planned use of the Property. Seller has received no written notice of any litigation or other governmental proceeding affecting the title to seeking eminent domain or the use rezoning of all or operation of any portion of the PremisesProperty or which adversely affects the operations of the Facility.
(gxi) Seller has granted no rights of first refusal or options to purchase the Property or any portion or portions thereof in effect as of the date of this Agreement.
(xii) To Seller’s knowledge, there are no (1) pending or threatened special assessments affecting the Property or (2) contemplated improvements affecting the Property that may result in special assessments affecting the Property.
(xiii) All contractors and subcontractors and other persons or entities engaged by Seller who have performed work on or supplied materials to any portion of the Property have been fully paid for all amounts due and owing, or will be paid as such amounts come due, and, to Seller’s actual knowledge, there are no claims against the Property arising from any non-payment by Seller which may give rise to a mechanic’s lien against the Property or any portion thereof.
(xiv) Seller has timely filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges except to the extent any non-payment of taxes or governmental charges would not affect any successor owner of the Property.
(xv) To Seller’s knowledge, Seller is not a party or subject to or otherwise in material default under any contract, lease or other agreement, judgment, order or decree of any governmental entity, or any settlement agreement that pertains to the Property.
(xvi) All insurance coverage for fire, liability, worker’s compensation, and other forms of insurance applicable to the Property or the Facility or the business conducted at the Facility (i) are in full force and effect, and (ii) have not been subject to any lapse in coverage.
(xvii) Seller has not received notice of any material violation of any other law or municipal ordinance, order or requirement noted or issued against the Property by any governmental authority having jurisdiction over the Property, which has not been cured, corrected or waived as of the Closing Date.
(xviii) The Personal Property together with the personal property being transferred to New Operator pursuant to the OTA is all of the personal property currently being utilized for the current operation of the Facility. No notice has been received of any written claim, requirement or demand of any licensing or certifying agency to rework or redesign the Property so as to conform to or comply with any existing law, code or standard which has not been fully satisfied prior to the date hereof. Seller has been granted no waivers of physical plant deficiencies or life safety code requirements with respect to the Property by any governmental or regulatory authority.
(xix) Seller is not a “foreign person” within the meaning for purposes of Section 1445(f)(3) § 1455 of the Internal Revenue Code of 1986, as amended.
(xx) Seller has provided to Purchaser true and correct copies of the updated year-to-date financial statements of the Facility and annual financial statements for the calendar years ending December 31, 2021, 2022 and 2023, and all monthly financial statements through October 31, 2024 (collectively, the “Financial Statements”). The Financial Statements (i) have been prepared from the books and records of Seller or Existing Operator in conformity in all material respects with United States Generally Accepted Accounting Principles, applied on a consistent basis throughout the period involved, except that the unaudited statements are without footnotes and are subject to normal yearend adjustments, (ii) present fairly in all material respects the financial position of the Facility as of the date of the Financial Statements and the results of operations and the cash flows of the Facility for the periods ending on the date of the Financial Statements, and (iii) to Seller’s actual knowledge, are true, complete and correct, in all material respects. Except as set forth in the most recent Financial Statements, there have been no events, transactions or information related to the Facility or the Facility’s operations or the Property which, singly or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(xxi) Except as otherwise set forth on Schedule 6(a)(xxi), Sxxxxx has not engaged any agent, broker, investment banker, person or firm who is entitled to a commission or fee in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated herein. To the extent any agent, broker, investment banker, person or firm has acted on behalf of Seller or under the authority of Seller, Seller shall be responsible for any such broker’s or finder’s fee or any other commission or similar fee payable directly or indirectly to such agent, broker, investment banker, person or firm in connection with any of the transactions contemplated herein.
(xxii) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, NONE OF SELLER, NOR ANY OF SELLER’S AFFILIATES OR REPRESENTATIVES (NOR ANY OTHER PERSON), HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO SELLER, THE FACILITY, THE PROPERTY OR SELLER’S BUSINESSES OR OPERATIONS (INCLUDING SELLER’S LIABILITIES, CONDITIONS (FINANCIAL OR OTHERWISE) OR PROSPECTS), ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN PARTICULAR, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, NONE OF SELLER, NOR ANY OF SELLER’S AFFILIATES OR REPRESENTATIVES (NOR ANY OTHER PERSON), HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO (A) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR PROSPECT INFORMATION RELATING TO ANY SELLER, THE PROPERTY, OR ANY SELLER’S BUSINESSES OR OPERATIONS OR (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, ANY ORAL OR WRITTEN INFORMATION, OTHER THAN INFORMATION SET FORTH IN THIS AGREEMENT, PRESENTED TO PURCHASER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES IN THE COURSE OF (I) THEIR DUE DILIGENCE INVESTIGATION OF ANY SELLER, THE FACILITY, THE PROPERTY OR ANY SELLER’S BUSINESSES OR OPERATIONS, (II) THE NEGOTIATION OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS OR (III) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE TRANSACTION DOCUMENTS. As used in this Agreement, the phrase “to Seller’s knowledge”, or any words or phrases of similar import, shall mean the current, actual knowledge of Axxx Xxxxxxx and each Facility administrator, after due inquiry. For the avoidance of doubt, it is expressly understood and agreed that such person will not have any personal liability under this Agreement on account of the representations and warranties set forth herein or otherwise.
(b) Subject to the balance of this Section 6(b), all of Seller’s Representations shall be true, correct and complete in all respects, both as of the date hereof and as of the Closing Date, and Seller shall certify its taxpayer identification number in writing at ClosingClosing that each and all of said Seller’s Representations are true, correct and complete as of and with respect to that date in all material respects as hereinafter provided. At any time, and from time to time on or prior to the Closing Date, Seller may, by written notice to Purchaser, supplement or amend the schedules (collectively, a “Disclosure Update”). Any Seller’s Disclosure Schedules delivered after the Effective Date shall constitute a Disclosure Update for purposes of this Section 6(b). The representations, warranties, and schedules will be deemed supplemented and amended by any Disclosure Update in order to cause the representations and warranties of Seller to be true as of the date hereof and the Closing Date; provided, however, that no Disclosure Update shall have any effect for the purpose of determining the satisfaction of the conditions set forth in Section 9 (other than an update to representations and warranties for purposes of Section 9(a)). Purchaser and any party seeking indemnity under this Agreement shall be barred from seeking indemnity with respect to any prior and updated versions of the schedules and/or virtual data room, unless: (i) such proposed schedule or Disclosure Update had or would have, individually or in aggregate with the effect of items disclosed in other supplemental schedules or Disclosure Updates which were first submitted after the Effective Date, a Material Adverse Effect, and (ii) within ten (10) business days after receipt of such proposed supplemental schedule or Disclosure Update, Purchaser provides written notice to Seller reasonably detailing the objection thereof and changes in such proposed schedule or Disclosure Update which would make the same acceptable. Should the Parties not be able to resolve written objections within ten (10) business days thereafter, then either Party may withdraw from this Agreement and terminate it subject to the provisions of this Agreement without any obligation or liability of any sort and this Agreement shall be treated as never having been executed or delivered, subject to Section 15. In the event the Closing occurs, any such newly completed schedules or supplements shall be effective, and they shall represent the final version of the schedule for all purposes.
(hc) To Seller’s actual knowledgeFrom the date hereof and until the earlier termination of this Agreement or the Closing, there are no federal, state, county Seller shall (except as otherwise consented to or municipal plans to restrict or change access from any highway or road to any of the Premises.approved by Purchaser in writing):
(i) Each of Not create or permit to become effective any lien or encumbrance or charge upon the Premises are a separate parcel for real estate tax assessment purposes.
Property (j) All of the financial data regarding the construction, ownership and operation of each of the Premises that Seller has provided other than Permitted Exceptions or items to Buyer is materially true, complete and correct.
(k) The Improvements have been constructed in accordance with the provisions of each of the respective Leases.be d
Appears in 1 contract
Samples: Purchase and Sale Agreement (Selectis Health, Inc.)
Seller’s Covenants, Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Properties, Seller makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of each of the respective Premises:
(a) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(b) Seller holds, or prior to the Closing Date shall hold, holds fee simple title to each of the Premises, free of all liens, assessments and encumbrances except for the applicable Permitted Exceptions for each respective Premises, and liens and encumbrances which will be paid and discharged at or prior to the Closing. Exceptions.
(c) Seller has no actual knowledge of any condition or state of facts which would preclude, limit or restrict the business operations conducted or contemplated, pursuant to the terms of the pertinent applicable Lease at each of the Premises, to be conducted by TenantXxxxxx.
(cd) There are no employees of Seller at any of the Premises.
(e) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting any of the Premises to which Buyer will be bound upon Closing, except for those contracts Seller is a party or by which Seller intends to keep in place on is bound which Seller shall remain liable as Tenant under the Leasesurvive either Closing.
(df) The To the best of Seller’s knowledge, none of the Premises and or the proposed use thereof by Tenant and or the condition thereof do not violate any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to any of the Premises, and are not designated by any governmental agency to be in a flood plain area.
(i) There shall exist exists no uncured event of default nor any event which, with the giving of notice or the passage of time or both, would constitute an Event event of Default default by Seller or Tenant under the respective either Lease; (ii) Tenant has not asserted nor does it have any defense, set-off or counterclaim in respect of its obligations under either Lease; (iii) no rent under either Lease has been prepaid for each of the Premisesmore than one month in advance nor are there any rebates, rental concessions, free-rent periods, credits, set-offs, rent reductions, take-back or take-over obligations or any other concessions granted thereunder; and (iiiv) all leasing commissions and fees with respect to each of the LeasesLease, if any, have been paid in full.
(fh) There is no pending or, to To the best of Seller’s knowledge, there is no pending or threatened litigation or other proceeding affecting the title to or the use or operation of any of the Premises.
(gi) To the best of Seller’s knowledge, there is no pending or threatened or contemplated taking or eminent domain action affecting any Premises.
(j) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at each Closing.
(hk) To the best of Seller’s actual knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to any of the Premises.
(i) Each of the Premises are a separate parcel for real estate tax assessment purposes.
(jl) All of the financial data regarding the construction, ownership and operation of each of the Premises and regarding Tenant and Guarantor that Seller has previously provided to Buyer prior to the Effective Date and prior to each Closing Date is materially true, complete complete, and correct.
(km) The Improvements Seller has delivered to Buyer true, correct, and complete copies of any Tenant and Guarantor financial data and any store level financial performance data, that Seller has in its possession and control.
(n) To the best of Seller’s knowledge and belief, except as disclosed in the Phase I Reports, no Hazardous Materials have been constructed been, stored, treated, disposed of or incorporated into, on or around any of the Premises in accordance with the provisions violation of any applicable statutes, ordinances or regulations, and each of the respective LeasesPremises are in compliance with all applicable environmental, health and safety requirements.
(o) There are no leases on any of the Premises as of the date hereof and as of the date of each Closing other than each Lease with the Tenant which will be entered into on the date of the applicable Closing.
(p) Seller has delivered to Buyer all of the items Seller is and was required to deliver pursuant to Section 5 of this Agreement.
(q) Seller warrants that, other than as may be disclosed in the foregoing representations and warranties, Seller has no knowledge of any other fact(s) materially affecting the value or desirability of the Properties whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements of Seller set forth in this Agreement shall be true upon the execution of this Agreement and shall be considered reaffirmed as of each Closing Date and shall survive each Closing Date for a period of one (1) year after such Closing Date whether or not Seller signs a reaffirmation certificate at such Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (RumbleOn, Inc.)
