After Closing (a) In the event that after taking possession of the Dwelling, the Purchaser shall complete and/or install any additions and/or improvements such as, but not limited to, porches, patios, plantings, paved driveways, pools or hot tubs, curbs or fences which are located within 6 feet of an external wall or within any area which interfere with the Vendor or Subdivider installing any required services, the Purchaser will remove such addition and/or improvements within 5 business days of written request from the Vendor and prior to the Vendor taking any corrective actions which it is required to take.
(b) In the event that after taking possession of the Dwelling, the Purchaser shall complete and/or install any improvements, additions or alterations thereto, including, but not limited to, finishing basement, wallpapering, cabinetry and/or mouldings and/or finishings, porch tiles or finishes, pools or hot tubs the Purchaser shall be required to remove such improvements, additions or alterations at his own expense, in the event that the Vendor shall be required to carry out any repairs or replacements to the Dwelling in the area of such improvements, additions or alterations.
(c) The Purchaser acknowledges that grading and sodding shall be done between June and October (weather permitting and subject to availability of supplies) of any year as per the Vendor's scheduling program. The Purchaser agrees that he shall be solely responsible for watering and general maintenance of sod from the Closing or from the date that sod is laid, whichever shall be the later, and the Vendor shall have no obligation in that regard. In the event the Vendor is, for any reason, required to replace laid sod, the Vendor shall not be obligated to do so until payment has been made therefor by the Purchaser and if so replaced, the Purchaser agrees to reimburse the Vendor for the costs and expenses of same as determined by the Vendor, which costs and expenses may be deducted from the Security Deposit at the Vendor's sole, absolute and unfettered discretion. Further, the Purchaser acknowledges that the order of closing of the Property and/or the order of completion or closing of other lots sold by the Vendor is not indicative of the order of sodding of the Property and said other lots.
(d) The Purchaser covenants to occupy the Dwelling forthwith after Closing. The Purchaser agrees not to finish the whole or any part of the basement of the Dwelling for a period of 24 months after the Closing or such longer period which is equivalent to the warranty period under the Warranty Act for basement repairs. The Purchaser hereby releases the Vendor from any liability whatsoever in respect of water damage to basement improvements and chattels stored in basement resulting from water seepage or leakage, including any consequential damages arising therefrom.
(e) The Purchaser acknowledges that the Vendor has a master key for the subdivision and in the event that the Purchaser wishes to change any locks, he may do so, at his own expense, any time after Closing.
(f) If settlement occurs due to soil disturbances around the Dwelling, the walkways, driveways and sodded areas, all minor settlements shall be the responsibility of the Purchaser, and the Vendor will rectify any major settlement once only, and such work, unless of an emergency nature, will be completed when reasonably feasible and according to the Vendor's work program and availability of materials and tradesmen's services. The Vendor is not responsible for any damage to the Dwelling which the Vendor considers of a minor nature by reason of such settlement.
(g) No request by the Purchaser for homeowner service will be processed by the Vendor unless such request is in writing other than emergency service, such as no heat, water or electricity. In the event the Vendor is requested by the Purchaser to perform a homeowner service call for repairs relating to construction or work performed by the Vendor and the Vendor determines in its sole discretion that such repair is required due to any negligent act or omission either through the neglect or omission of the Purchaser, the Purchaser shall pay to the Vendor the sum of $350.00 per homeowner service call, plus the cost of all materials utilized by the Vendor in making such repair, plus Applicable Taxes thereon.
(h) The Purchaser agrees that after Closing, if required by the Municipality or any public or private utility such as the local electric authority, gas company, telecommunication or television system provider he will grant an easement for the installation and maintenance of sewers, water mains, lines or any other similar installations.
Seller’s Breach Upon discovery by a Responsible Officer of the Master Servicer, the Securities Administrator or the Trustee or notice to the Master Servicer, the Securities Administrator or the Trustee of any defective or missing document (as described in the related Sale Agreement) in a Trustee Mortgage Loan File, or of any breach by any Seller of any representation, warranty or covenant under the related Sale Agreement, which defect or breach materially and adversely affects the value of any Mortgage Loan or the interest of the Trust therein (it being understood that any such defect or breach shall be deemed to have materially and adversely affected the value of the related Mortgage Loan or the interest of the Trust therein if the Trust incurs a loss as a result of such defect or breach),the parties discovering or receiving notice of such defect or breach shall notify the Securities Administrator. Upon discovering or receipt of notice of such breach, the Securities Administrator shall promptly request that such Seller cure such breach and, if such Seller does not cure such defect or breach in all material respects by the end of the cure period specified in such Sale Agreement and any extension of the cure period granted as permitted by such Sale Agreement, shall enforce such Seller’s obligation under such Sale Agreement to purchase such Mortgage Loan from the Trustee. In the event any Servicer has breached a representation or warranty under the related Servicing Agreement that is substantially identical to a representation or warranty breached by a Seller, the Securities Administrator shall first proceed against such Servicer. If such Servicer does not within 60 days (or such other period provided in the related Servicing Agreement) after notification of the breach, either take steps to cure such breach (which may be evidenced by a certificate asking for an extension of time in which to effectuate a cure) or complete the purchase of the Mortgage Loan, then (i) the Securities Administrator, shall enforce the obligations of the Seller under the related Sale Agreement to cure such breach or to purchase the Mortgage Loan from the Trust, and (ii) such Seller shall succeed to the rights of the Securities Administrator to enforce the obligations of the Servicer to cure such breach or repurchase such Mortgage Loan under the Servicing Agreement with respect to such Mortgage Loan. Notwithstanding the foregoing, however, if any breach of a representation or warranty by the Servicer or of a Seller is a Qualification Defect, a cure or purchase must take place within 75 days of the Defect Discovery Date.
After the Closing Seller shall, and shall cause its Affiliates to, preserve, in accordance with Seller’s, or its applicable Affiliates’, standard document retention policies and until the earlier to occur of (i) such date as such books and records are transferred to Buyer or its Affiliates or (ii) the end of the Retention Period, all pre-Closing Date books and records of the Acquired Companies and the Business (including any Business Data) that have not been transferred to Buyer. During such period, upon any reasonable request from Buyer or its Representatives, the member of the Seller Group holding such books and records shall (i) provide to Buyer or any of its Representatives reasonable access to such books and records during normal business hours; provided, however, that such access shall not unreasonably interfere with the conduct of the business of Seller or any of its Affiliates holding such books and records and (ii) permit Buyer or any of its authorized Representatives to make copies of such books and records, in each case, at no cost to Buyer or its applicable Representatives (provided that Xxxxx will reimburse Seller for reasonable out-of-pocket costs or expenses incurred by Seller). Nothing herein shall require Parent, Seller or any of its Affiliates to disclose any information to Buyer if such disclosure would (A) jeopardize any applicable attorney-client privilege, the work product immunity or any other applicable legal privilege or similar doctrine, (B) contravene any applicable Law or contractual confidentiality obligation, (C) jeopardize the health and safety of any employee of Seller or any of its Subsidiaries, in light of COVID-19 or any COVID-19 Measures or (D) result in competitive harm to Seller or any of its Subsidiaries, it being understood that Seller shall use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in the case of each of clauses (A) to (D), that would enable any otherwise required disclosure to Buyer or its Representatives to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law or contractual confidentiality obligation or jeopardizing health and safety or resulting in competitive harm or (E) require Parent, Seller or any of its Affiliates to disclose its Tax records (except for Tax records exclusively of, or with respect to, the Acquired Companies or the Business). Such books and records may be requested under this Section 9.5(b) for any reasonable business purpose, including to the extent reasonably required in connection with accounting, litigation, financial reporting, federal securities disclosure, compliance with contractual obligations of Buyer or any of its Affiliates or review of the Closing Statement.
INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP (a) The Company and the Operating Partnership, jointly and severally, shall indemnify and hold harmless the Advisor and its Affiliates, as well as their respective officers, directors, equity holders, members, partners, stockholders, other equity holders and employees (collectively, the “Indemnitees,” and each, an “Indemnitee”), from and against all losses, claims, damages, losses, joint or several, expenses (including reasonable attorneys’ fees and other legal fees and expenses), judgments, fines, settlements, and other amounts (collectively, “Losses,” and each, a “Loss”) arising in the performance of their duties hereunder, including reasonable attorneys’ fees, to the extent such Losses are not fully reimbursed by insurance, and to the extent that such indemnification would not be inconsistent with the laws of the State of New York, the Articles of Incorporation or the provisions of Section II.G of the NASAA REIT Guidelines. Notwithstanding the foregoing, the Company and the Operating Partnership shall not provide for indemnification of an Indemnitee for any Loss suffered by such Indemnitee, nor shall they provide that an Indemnitee be held harmless for any Loss suffered by the Company and the Operating Partnership, unless all the following conditions are met:
(i) the Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interest of the Company and the Operating Partnership;
(ii) the Indemnitee was acting on behalf of, or performing services for, the Company or the Operating Partnership;
(iii) such Loss was not the result of negligence or willful misconduct by the Indemnitee; and
(iv) such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from the Stockholders.
(b) Notwithstanding the foregoing, an Indemnitee shall not be indemnified by the Company and the Operating Partnership for any Losses arising from or out of an alleged violation of federal or state securities laws by such Indemnitee unless one or more of the following conditions are met:
(i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the Indemnitee;
(ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or
(iii) a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company or the Operating Partnership were offered or sold as to indemnification for violation of securities laws.
(c) In addition, the advancement of the Company’s or the Operating Partnership’s funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought is permissible only if all the following conditions are satisfied:
(i) the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company or the Operating Partnership;
(ii) the legal action is initiated by a third party who is not a Stockholder or the legal action is initiated by a Stockholder acting in such Stockholder’s capacity as such and a court of competent jurisdiction specifically approves such advancement; and
(iii) the Indemnitee undertakes to repay the advanced funds to the Company or the Operating Partnership, together with the applicable legal rate of interest thereon, in cases in which such Indemnitee is found not to be entitled to indemnification.
Representations and Warranties of the Company and the Operating Partnership The Company and the Operating Partnership hereby jointly and severally represent, warrant and covenant to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
Indemnification of Sellers Parent, LuxCo and BHN, jointly and severally hereby agree to indemnify and hold harmless Sellers, each of its Affiliates, and each of its members, managers, partners, directors, officers, employees, attorneys and agents and permitted assignees (the “Sellers Indemnitees”) against and in respect of any Losses incurred or sustained by any Sellers Indemnitee as a result of any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Sellers Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Sellers Indemnitees shall not be entitled to indemnification pursuant to this Section 10.2 unless and until the aggregate amount of Losses to Sellers Indemnitees equals at least the Basket, at which time, subject to the Indemnifiable Loss Limit, the Sellers Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Sellers Indemnitee arising out of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectively.
Prior to Closing As used herein, “Compensation” shall mean the direct salaries and wages and other aggregate compensation paid to or accrued for the benefit of any employee together with all fringe benefits payable to or accrued for the benefit of such employee as to which the employer is responsible, including, without limitation, employer contributions under F.I.C.A., fringe benefits, annual bonuses, unemployment compensation or other employment taxes, pension fund contributions, vacation pay, sick leave, worker’s compensation, group life and accidental and health premiums, and pension or profit sharing, retirement, disability and other similar benefits. Purchaser shall be responsible for and shall pay (i) all Compensation with respect to the operations of the Property on and after the date of Closing and (ii) all Compensation which is accrued but not payable as of the Closing and for which Purchaser is credited at Closing. For these purposes, vacation benefits, sick leave, annual bonuses and related payroll expenses of Hotel Employees (the “Supplemental Employee Expenses”) as of the Closing shall be treated as accrued and subject to proration solely (A) if vested and not subject to expiration if not used or termination in the event of the employee’s departure or (B) to the extent of 70% of any such accrued Supplemental Employee Expenses subject to later vesting or expiration if not used or termination in the event of the employee’s departure. With respect to accrued bonuses for 2006, Seller’s pro-rated share at Closing shall be based upon Operator’s reasonable estimate of the bonuses to be paid to such Hotel Employees for 2006. No later than March 31, 2007, or earlier upon the mutual agreement of the parties, the parties shall adjust Seller’s pro-rated share of the bonuses paid to the Hotel Employees for 2006 based upon the actual amounts of such bonuses (as shown by such supporting documentation as may be reasonably required by either party), and Purchaser or Seller, as the case may be, shall make such additional payment or refund as shall be required by such adjustment. Purchaser acknowledges that the New HMA shall initially afford the Hotel Employees continuation of all rights under Operator’s existing Section 401(k) plans and health care plans, as previously afforded under the Current HMA.
Representations and Warranties by the Company and the Operating Partnership Each of the Company and the Operating Partnership, jointly and severally, represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
Final Adjustment After Closing If final bills are not available or cannot be issued prior to Closing for any item being prorated under Section 8.1, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice. All such rights and obligations shall survive the Closing.
Indemnification of the Company and the Selling Stockholders The Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each of the Selling Stockholders to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the only such information furnished by the Underwriter consists of the following information in the Prospectus furnished on behalf of the Underwriter: the concession figure appearing in the sixth paragraph and the information concerning short selling and purchasing contained in the eleventh and twelfth paragraphs under the caption “Underwriting” (collectively, the “Underwriter Information”).
