Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that: (a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof. (b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property. (c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid. (d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property. (e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property. (f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property. (g) None of the lots are located in a flood plain area. (h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller. (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing. (j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period. (k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien. (l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 4 contracts
Samples: Real Estate Sale and Purchase Agreement (Rainwire Partners Inc /De/), Real Estate Sale and Purchase Agreement (Rainwire Partners Inc /De/), Real Estate Sale and Purchase Agreement (Rainwire Partners Inc /De/)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows, all of which shall be true and correct on the Closing Date:
(a) No person, firm, or entity (except Except as may be set forth in this Agreementon Exhibit F, (i) has any rights in there is no current or right to acquire pending litigation against Seller or the Property of which Seller has received written notice, and (ii) to the best of Seller’s knowledge, there is no litigation threatened against Seller or any part thereofthe Property, in each case, which, if determined adversely to Seller, could reasonably be expected to adversely affect the Property.
(b) Except as set forth on Exhibit G, there are no office supply, maintenance or utility contracts, or any other agreements affecting the Property.
(c) As of the date of this Agreement, the only party with any rights to occupy any portion of the Property is Vivus, Inc. under the Vivus Lease.
(d) Except as disclosed on Exhibit H, Seller has not received any written notice from any governmental authority or other person, and Seller has no written knowledge of the violation of any law or ordinance regulating use of the Property, including those dealing the environment, which has not been cured by Seller to the satisfaction of the issuer.
(e) Seller has the full right, power and authority and has obtained any and all consents required to execute and deliver this Agreement and all of the documents to be delivered by Seller at the Closing, and to consummate or cause to be consummated the transactions contemplated in this Agreement. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.
(f) There is no agreement to which Seller is a party or, to Seller’s knowledge, binding on Seller which is in conflict with this Agreement.
(g) No condemnation, eminent domain or similar proceedings are pending, or to Seller’s threatened, with regard to the Property. Seller has not received any notice and has no knowledge of any actual pending or threatened actionliens, litigationspecial assessments, rezoning, condemnation impositions or proceeding by any person, entity or governmental agency, which would affect increases in assessed valuations to be made against the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 3 contracts
Samples: Agreement for Sale of Real Estate, Agreement for Sale of Real Estate (Vivus Inc), Sale of Real Estate Agreement (Vivus Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a) No 10.1.1 The persons who have executed this Agreement have been duly authorized to do so by Seller. All documents delivered at Closing will be executed by a duly authorized person, firm, or entity (except as may be set forth . Seller has a good and legal right to enter into this Agreement and to perform all covenants of Seller contained in this AgreementAgreement in accordance with its terms. All requisite action (corporate, trust, trustee, partnership or otherwise) has been taken by Seller in connection with the entering into of this Agreement, the instruments referenced herein, and the consummation of this transaction. No further consent of any rights partner, shareholder, trustee, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party is required.
10.1.2 To Seller’s Actual Knowledge and as except to third-party reports and surveys received by Buyer prior to the expiration of the Due Diligence Period, each item of information furnished by Seller to Buyer in connection with this Agreement is accurate and complete, unless otherwise noted.
10.1.3 Seller warrants that now and at the time of Closing, to Seller’s Actual Knowledge, there exists no pending or right to acquire threatened condemnation or litigation affecting the Real Property or any part thereofthe sale thereof to Buyer.
(b) 10.1.4 Seller warrants that, unless otherwise disclosed in writing attached hereto, the Real Property is now a legal lot and no partition, subdivision, lot line adjustment or other action is required to create the Real Property as a separate and distinct parcel pursuant to applicable laws, ordinances and regulations.
10.1.5 Seller has received no written notice addressed to Seller or related entities, and has no knowledge Actual Knowledge of any actual violation or threatened action, litigation, rezoning, condemnation investigation of violation of any applicable law or proceeding by any person, entity or governmental agency, which would affect ordinance affecting the Real Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those 10.1.6 Unless otherwise disclosed in writing and delivered to Purchaser during Buyer in accord with the Feasibility Period.
terms of Section 9.2 (ka) All labor performed and materials supplied for there are no leases affecting all or any part of the Property have been fully paid by SellerReal Property; (b) there are no written or oral promises, understandings, agreements or other commitments between Seller and any other person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect affecting the Real Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.; and
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may Buyer that the following statements are true on the Effective Date of this Agreement and will be set forth in true on the Closing Date and shall survive the Closing: Seller has all power and authority legally necessary to enter into this Agreement, to execute and deliver all Closing documents and to sell the Property in accordance with the terms and conditions of this Agreement. There is no existing or, to Seller’s knowledge, threatened, proposed or contemplated litigation, action, administrative proceeding or assessment (including, without limitation, eminent domain proceedings or public improvement assessments) has against the Property or Seller which would adversely affect the Property or Seller’s ability to perform its obligations under this Agreement or under any rights in documents executed by Seller pursuant to this Agreement. Neither Seller’s execution of this Agreement nor performance by Seller of any of its obligations hereunder, including, without limitation, the transfer, assignment and sale of the Property contemplated by this Agreement (1) violates or right shall violate any written or oral agreement or instrument to acquire which Seller is a party or is bound or which affects the Property or any part thereof.
of it or (b2) shall constitute or result in violation or breach by Seller has received no written notice and has no knowledge of any actual judgment, order, writ, induction or threatened actiondecree issued or imposed upon Seller, litigationor to the best of Seller’s knowledge, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge will result in violation of any governmental assessments concerning laws or conditions or restrictions relating to Seller or the Property, which are unpaid.
and no approval, consent, order, authorization, designation filing (d) other than recording), registration, notification of, by or with any judicial or governmental authority is required in conjunction with Seller’s execution of this Agreement and/or performance of its obligations hereunder. Seller is not a “foreign person” as defined in Internal Revenue Code Section 1445, and any related regulations. Seller has no knowledge of and has not received no any written notice of to the effect that any violation of law, municipal condemnation or county ordinances involuntary rezoning proceedings are pending or codes, or other legal requirements threatened with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 3 contracts
Samples: Option Agreement, Purchase Agreement, Option Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No personA. Seller has all requisite power and authority to execute this Agreement, firmthe closing documents listed in Article III hereof, and any other documents required to be delivered by the Seller.
B. To the best of Seller's knowledge, the conveyance of the Property to Purchaser pursuant to this Agreement will not be a violation by Seller of any applicable statute, ordinance, governmental restriction, or entity regulation, or any private restriction or agreement.
C. To the best of Seller's knowledge, as of the date of full execution hereof, there is no administrative agency action, litigation or other governmental proceeding of any kind pending or threatened against the Seller or the Property which after the Closing would materially, adversely affect the value of the Property.
D. To the best of Seller's knowledge, no special assessments of any kind (except as may be set forth in this Agreementspecial, bond or otherwise) are levied against the Property which are outstanding and unpaid.
E. Seller has no knowledge of any rights in pending or right to acquire contemplated condemnation proceedings affecting the Property or any part thereof.
(b) . Seller has received no written notice and has no knowledge of will not sell, assign or convey any actual right, title or threatened action, litigation, rezoning, condemnation interest whatever in or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf or create or permit to exist any lien, encumbrance, or charge thereon without promptly discharging the same, except as otherwise expressly provided for herein.
F. Seller will not willfully take any action, or willfully omit to take any action, which action or omission would have the effect of the Seller during the 90 days immediately preceding violating any of its representations, warranties, covenants and agreements contained herein. Seller's warranties and representations contained in this Agreement shall not survive the Closing Date which will not and shall be paid for in full as of merged into the Closing Date, Deed and there will other documents to be no outstanding bills incurred for labor, services executed and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated delivered in connection with Closingthe transaction contemplated herein.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 3 contracts
Samples: Sales Contract (Roberts Realty Investors Inc), Sales Contract (Roberts Realty Investors Inc), Sales Contract (Roberts Realty Investors Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire that the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which following matters are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Effective Date and Seller shall re-certify the representations and warranties on as of the Closing Date Date:
(a) Seller owns good and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due indefeasible title to the inaccuracy Property, subject only to the Permitted Exceptions and those liens or encumbrances which Seller will pay off and release at Closing.
(b) The execution, delivery and performance by Seller of this Agreement is within the authority of Seller, has been authorized by all necessary proceedings and do not and will not contravene any provision of law, any organizational document of Seller or any written agreement or contract to which Seller is a party.
(c) There are no judgments outstanding against Seller or petitions, suits, claims, causes of actions or moratoria or any other proceedings pending or threatened against Seller before any court or other governmental, administrative, regulatory, adjudicatory, or arbitrational body of any kind which, if decided adversely to Seller, would adversely affect Seller’s ability to perform its obligations under this Agreement.
(d) Upon execution and delivery of this Agreement by Seller, this Agreement will be a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
(e) There is no pending or, to the best of Seller’s knowledge, threatened, litigation, condemnation, investigation or other legal proceeding affecting the Property or any portion thereof, and there are no actions, suits, proceedings, orders, administrative proceedings or investigations pending or, to the best of Seller’s knowledge, threatened, against or affecting the Property or any portion thereof.
(f) There are no leases, licenses, occupancy agreements or other agreements giving any person the right to occupy all or any part of the Premises.
(g) There are no service contracts or agreements pertaining to the use, operation or maintenance of the Premises.
(h) To the best of Seller’s knowledge, the Premises have not contained and do not now contain any Hazardous Materials or substances in quantities or concentrations that require removal or remediation in accordance with applicable law. This indemnity shall survive “Hazardous Material” means any hazardous or toxic waste, substance or material, pollutant or contaminant, or words of similar import, as the Closing same may be defined from time to time in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et. seq.), as amended, or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et. seq.), as amended, or any other applicable federal, state or local law, ordinance, rule or regulation relating to the environment, pollutants, contamination or similar matters. The Premises have been operated by Seller in compliance with all applicable federal, state and local laws and regulations (“Environmental Laws”) governing Hazardous Materials; Seller has not received any notice or citation for a period of one noncompliance with respect to any Environmental Laws relating to the Premises; no Hazardous Material has been or is currently generated, stored, transported, utilized, disposed of, managed, treated, released or located on or from the Premises (1) yearwhether or not in reportable quantities); and there are no underground storage tanks under the Premises.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Karat Packaging Inc.), Purchase and Sale Agreement (Karat Packaging Inc.), Purchase and Sale Agreement (Karat Packaging Inc.)
Seller’s Representations and Warranties. As The Seller makes the following representations and warranties, all of which shall be true and correct at the Effective Date (unless a different date is specified), Seller represents Closing and warrants to Purchaser thatwhich shall not survive Closing:
(a) No personTo the Seller’s actual knowledge, firmand except as reflected in the Title Documents, there are no claims, actions, suits, or other proceedings pending or threatened or any governmental department or agency or any other corporation, partnership, entity (except as or person whomsoever, nor any voluntary actions or proceedings contemplated by the Seller, which in any manner or to any extent may be set forth detrimentally affect Buyer’s right, title or interest in and to the Property, or the Seller’s ability to perform the Seller’s obligations under this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) The Seller has received the full power and authority to enter into and perform this Agreement according to the terms hereof and the individuals executing this Agreement and all documents delivered pursuant to this Agreement on behalf of the Seller are authorized to do so.
(c) To the Seller’s actual knowledge, Seller has good and indefeasible title in fee simple to the Property. The Property has not been assigned or conveyed to any party. Except as reflected in the Title Documents, there are no written notice agreements (other than this Agreement), commitments or understandings by or between the Seller and has no knowledge any third party pursuant to which the Seller or its successors in interest are required to convey, dedicate, sell or transfer any part of the Property or to grant any actual easement, water right, right-of-way, road or threatened action, litigation, rezoning, condemnation or proceeding by license in respect to any person, entity or governmental agency, which would affect part of the Property.
(cd) To the Seller’s actual knowledge, the Seller has not received any notices and the Seller is not otherwise aware that the Property was not or is not in compliance with all federal, state of Arizona and local laws, ordinances and regulations relating to environmental protection, occupational health and safety, public health and safety or public nuisance or menace (collectively “Environmental Laws”). To the Seller’s actual knowledge there has been no written notice and has no knowledge production, storage, transport, release, spillage or disposal upon the Property of any governmental assessments concerning the Propertyhazardous substances, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawhazardous waste, municipal or county ordinances or codeshazardous materials, toxic substances, contaminants, or any other legal requirements with respect substances declared to be hazardous or toxic under any Environmental Laws, except for spillage of aircraft fuel that may occur in the normal course of airplanes fueling and locating on the Property.
(e) The To the Seller’s actual knowledge, there is no pending or threatened condemnation or similar proceedings affecting the Property does not violate environmental laws applicable to it or any part thereof and the Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyknowledge that any such proceeding is presently contemplated.
(f) This Agreement and all documents required hereby to be executed by the Seller is orare and shall be valid, as of legally binding obligations of, and enforceable against the Closing Date will beSeller, the owner of fee simple, marketable title to the Propertyin accordance with their terms.
(g) None Except as otherwise expressly set forth in this Agreement and the Deed, neither the Seller nor its officials, officers, employees, agents, representatives, attorneys or contractors (collectively "Seller’s Parties") have made any representations, guaranties, promises, assurances or warranties, express or implied, to Buyer including, without limitation, any pertaining to the suitability of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any pavingpurpose, sidewalk, curbing, water, sewer, street improvements, other utilities the profitability of owning or other services provided for the benefit of the Seller on the Property of any kind against operating the Property, the physical or environmental condition thereof, the suitability, habitability or merchantability or fitness of the Property for Buyer's intended use or for any use whatsoever, the rentals, income or expenses thereof, the net or gross acreage contained therein, the zoning thereof, the condition of title thereto, the existence or satisfaction of any local, state or federal approvals or permits for the development or use thereof, the availability or existence of water, sewer or other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations utilities, the existence or nonexistence of any hazardous substances or materials in, on or under the Property, or as to any county past, present or local authorities or any homeowners future matter whatsoever. The Seller acknowledges and agrees that this disclaimer has been specifically negotiated and that the Property will be sold in the community regarding condition described in Section 6.01. Buyer acknowledges that it will have the type opportunity to inspect the Property during the Feasibility Period, and during such period, observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and the Property and adjacent areas as Buyer deems necessary. Buyer hereby forever releases and discharges Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for matters relating to the physical, environmental or style of the development legal compliance status of the Property, exceptwhether arising before or after the Effective Date, if anyunder the Comprehensive Environmental Response, for those disclosed in writing to Purchaser during Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“CERCLA”), regarding the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Sellercondition, and any person for such labor valuation, salability, rentability or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information utility of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the successful operation presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property). Buyer further hereby waives (and by Closing this transaction will be deemed to have waived) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property is or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property, except as specifically provided including, without limitation, the landlord’s obligations under the Leases relating to Purchaser in writing during the Feasibility Period. All physical, environmental or legal compliance status of the representations and warranties Property, whether arising before or after the Effective Date. Buyer further hereby assumes the risk of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.changes
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Seller’s Representations and Warranties. As Seller hereby represents and warrants to Buyer, which representations and warranties shall be deemed made by Seller to Buyer as of the Effective Date (unless a different date is specified)and also as of the Closing Date, Seller represents and warrants to Purchaser that:
i. Seller is a duly organized and validly existing corporation under the laws of the State of Washington with the full power and authority to perform its obligations hereunder.
ii. None of the execution, delivery or performance of this Agreement by Seller does or will, with or without the giving of notice, lapse of time or both, violate, conflict with, constitute a default or result in a loss of rights under or require the approval or waiver of any entity under (aA) No personthe organizational documents of Seller or any material agreement, firminstrument or other document to which Seller is a party or by which Seller is bound, or entity (except B) any judgment, decree, order, statute, injunction, rule, regulation or the like of a governmental unit applicable to Seller.
iii. Upon Board Approval (as may be set forth defined in Section 5(b) above), the execution, delivery and performance by Seller of this Agreement, and all of Seller’s obligations hereunder, shall be duly and validly authorized by all requisite action on the part of the Seller. This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms.
iv. Seller has no knowledge of and has not received written notice of (A) has the existence, institution or the proposed institution of condemnation proceedings relating to any rights portion of the Property or any other taking against all or any part of the Property; (B) the widening, change or grade or limitation on use of streets abutting the Property; (C) concerning pending public improvements in or right adjoining the Property; (D) concerning any special taxes or assessments levied or to acquire be levied against the Property; or (E) concerning any change in the zoning classification of the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) v. Seller is ornot a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Dateamended, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by SellerIncome Tax Regulations thereunder.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Commercial & Investment Real Estate Purchase & Sale Agreement, Purchase & Sale Agreement (Craft Brew Alliance, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No personA. Seller has all requisite power and authority to execute this Agreement, firmthe closing documents listed in Article III hereof, and any other documents required to be delivered by the Seller.
B. To the best of Seller’s knowledge, the conveyance of the Property to Purchaser pursuant to this Agreement will not be a violation by Seller of any applicable statute, ordinance, governmental restriction, or entity regulation, or any private restriction or agreement.
C. To the best of Seller’s knowledge, as of the date of full execution hereof, there is no administrative agency action, litigation or other governmental proceeding of any kind pending or threatened against the Seller or the Property which after the Closing would materially, adversely affect the value of the Property.
D. To the best of Seller’s knowledge, no special assessments of any kind (except as may be set forth in this Agreementspecial, bond or otherwise) are levied against the Property which are outstanding and unpaid.
E. Seller has no knowledge of any rights in pending or right to acquire contemplated condemnation proceedings affecting the Property or any part thereof.
(b) . Seller has received no written notice and has no knowledge of will not sell, assign or convey any actual right, title or threatened action, litigation, rezoning, condemnation interest whatever in or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf or create or permit to exist any lien, encumbrance, or charge thereon without promptly discharging the same, except as otherwise expressly provided for herein.
F. Seller will not willfully take any action, or willfully omit to take any action, which action or omission would have the effect of the Seller during the 90 days immediately preceding violating any of its representations, warranties, covenants and agreements contained herein. Seller’s warranties and representations contained in this Agreement shall not survive the Closing Date which will not and shall be paid for in full as of merged into the Closing Date, Deed and there will other documents to be no outstanding bills incurred for labor, services executed and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated delivered in connection with Closingthe transaction contemplated herein.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Sales Contract (Roberts Realty Investors Inc), Sales Contract (Roberts Realty Investors Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)material inducement to Purchaser to execute this Agreement and consummate this transaction, Seller represents and warrants to Purchaser thatas follows:
(a) No personA. Seller is duly organized, firmvalidly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the state in which the Property is located.
B. Seller has all requisite and necessary power and authority to execute and deliver this Agreement and to perform Seller's obligations hereunder or contemplated hereby.
C. The execution, delivery and performance by Seller of its obligations under this Agreement will not result in a breach of any of the terms or provisions of, or entity constitute a default (except as may be or a condition which, upon notice or lapse of time or both, would constitute a default) under any agreement, instrument or obligation to which Seller is a party or by which Seller is bound and will not constitute a violation of any law, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court of other governmental authority having jurisdiction over Seller.
D. There are no judgments, actions, suits or proceedings existing or pending (or, to the best of Seller's knowledge threatened) against Seller, at law or in equity, before or by any governmental authority having jurisdiction over Seller, which could have a material and adverse effect upon its performance of this Agreement.
E. This Agreement is the legal and binding obligation of Seller, enforceable against Seller in accordance with its terms.
F. To the best of Seller's knowledge, the list of the Service Contracts set forth on Exhibit F annexed hereto, and the Rent Roll set forth on Exhibit G are true and complete in this Agreement) has any rights in or right all material respects and there are no oral agreements with anyone, including Tenants, with respect to acquire the Property or any part portion thereof.
(b) G. To the best of Seller's knowledge, there are no condemnation proceedings pending affecting the Property, nor has Seller has received no any written notice and has no knowledge notices of any actual litigation or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect violations of laws affecting the Property.
H. All of the present Leases are in writing, on a standard form and, are (ca) in full force and effect and (b) valid and binding agreements of, and fully enforceable in accordance with their terms against, the tenants.
I. The Leases will not be amended in any way after the date hereof, other than in the ordinary course of business without the prior, written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned and delayed. Purchaser, unless it otherwise shall advise Seller has received in writing within three (3) days following Seller's request for such consent, shall be deemed to have consented to any such amendment.
J. To the best of Seller's knowledge and except as stated in the Rent Roll, there are no written notice and has no knowledge uncured defaults on the part of any governmental assessments concerning party to any of the PropertyLeases, which are unpaidand Seller is in full compliance with all of lessor's obligations thereunder.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) K. None of the lots are located in a flood plain arearentals due or to become due under the Leases will be assigned, encumbered, or subject to any liens at the Closing other than the Permitted Exceptions.
(h) No improvements or repairs have been made or will be made L. To the best of Seller's knowledge the operating statements provided to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for Purchaser are accurate in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Sellerall material respects.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Sale Agreement (Walden Residential Properties Inc), Agreement of Sale and Purchase (Walden Residential Properties Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a) No person, firm, or entity (except 1. Seller has full authority to sign this Agreement and all documents to be executed by Seller as may be set forth in contemplated by this Agreement. The individual(s) has any rights executing this Agreement and all such documents contemplated by this Agreement on behalf of Seller are duly elected or appointed and validly authorized to execute and deliver the same.
2. This Agreement constitutes a legal, valid and binding obligation of Seller and, together with each of the documents to be executed by Seller as contemplated by this Agreement, is enforceable against Seller in or right accordance with its terms.
3. To Seller’s knowledge, Seller owns good and marketable fee simple title to acquire the Property or any part thereofthat is insurable, subject only to the Permitted Exceptions.
(b) 4. Except for pending eviction actions, Seller has not received no written notice and has no knowledge of any actual legal actions, suits or other legal or administrative proceedings pending or threatened action, litigation, rezoning, condemnation against Seller or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, and Seller is not aware of any facts which are unpaidmight result in any such action, suit or other proceeding.
(d) 5. To Seller’s knowledge, the Property does not contain any hazardous wastes, hazardous substances, hazardous materials, toxic substances, hazardous air pollutants or toxic pollutants as those terms are used in the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Clean Air Act and the Clean Water Act, and in any amendments thereto, or in any regulations promulgated pursuant thereto, or in any applicable state or local law, regulation or ordinance.
6. Seller has no knowledge of and has received no written notice of (i) any violation of law, municipal condemnation or county ordinances zoning change affecting or codes, or other legal requirements contemplated with respect to the Property.
; (eii) The Property does not violate environmental laws any changes contemplated in any applicable to it and Seller has not used laws, ordinances or restrictions affecting the use of the Property for the generation, storage as a mobile home park; or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fiii) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or any liens for past due taxes or assessments of any nature(governmental or private), for any pavingeither pending or confirmed, with respect to sidewalk, curbingpaving, water, sewer, street improvements, other utilities drainage or other services provided for the benefit of the Seller improvements on or adjoining the Property of or with respect to any kind against the Propertyproperty owners’ association, declaration or easement agreement (other than those items which the lien of ad valorem property taxes that are pro-rated in connection with Closingnot yet due and payable).
(j) 7. To Seller’s knowledge, Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Sellercomplied and are currently in compliance with all applicable laws, ordinances, regulations, statutes, rules, restrictions and any person for such labor inspection requirements pertaining to or materials may claim no mechanic's lien or any other lienaffecting the Property.
(l) 8. The Due Diligence Materials delivered by Seller has no knowledge or information to Buyer in accordance with this Agreement are full, complete and accurate copies of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearDue Diligence Materials within Seller’s possession.
Appears in 2 contracts
Samples: Assignment of Purchase and Sale Agreement (Manufactured Housing Properties Inc.), Purchase and Sale Agreement (Manufactured Housing Properties Inc.)
Seller’s Representations and Warranties. As Except as otherwise set forth in the disclosure schedule attached hereto, Seller hereby represents and warrants to Buyer that as of the Effective Date (unless a different date is specified)and, Seller represents and warrants subject to Purchaser thatSection 7(b) below, as of the Closing Date:
(ai) No personother person or entity has a contract or option to purchase, firmletter of intent, right of first refusal or first offer, or entity (except as may be set forth in this Agreement) has any similar rights in or right with respect to acquire the Property or any part thereofthat is now outstanding.
(bii) Seller has the right to transfer fee simple ownership to the Property to Buyer.
(iii) To Seller’s knowledge, Sxxxxx has received no notice from any governmental authority with jurisdiction over the Property of any current violation by the Property of any laws or regulations applicable to the Property. Seller shall immediately provide Buyer with a copy of any such notices received after the Effective Date.
(iv) There are no leases, licenses, or agreements for occupancy currently in effect with respect to all or any portion of the Property.
(v) There are no contracts or agreements relating to the ownership, operation and maintenance of the Property that will survive the Closing, other than the Assumed Contracts. To Seller’s knowledge, there are no defaults under or with respect to the Assumed Contracts.
(vi) There is no litigation pending or threatened against Seller that arises out of Seller’s ownership or operation of the Property.
(vii) To Seller’s knowledge, no condemnation or eminent domain proceedings are pending or threatened against the Property.
(viii) The Due Diligence Items delivered to Buyer are true and complete copies of the same documents (originals or copies) that are in Seller’s possession and used in connection with the operation and management of the Property. None of the Due Diligence Items provided to Buyer has been amended, modified or terminated except as disclosed in writing to Buyer.
(ix) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal Environmental Laws or county ordinances the presence or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance Hazardous Materials on or from the Property.
(f) Seller is or, Property in violation of Environmental Laws except as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located may be disclosed in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes any environmental reports or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners included in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility PeriodDue Diligence Items. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.“
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Cleanspark, Inc.), Purchase and Sale Agreement (Cleanspark, Inc.)
Seller’s Representations and Warranties. As The matters set forth in this Section 10.01 constitute representations and warranties by Seller, made as of the Effective Date (unless a different date hereof so far as is specified)known to Seller, and which are now and shall continue to be true, complete, and correct up to and including the Closing Date. Seller hereby represents and warrants to Purchaser that:
(a) With respect to the Real Property:
(i) The Company has good and marketable title in fee simple to the Real Property free and clear of all liens, except those listed on Schedule 10.01(a)(i) or otherwise disclosed in the Title Policies or Title Commitment. The Real Property has not been assigned or conveyed to any party other than to a Mortgage Lender. No person, firm, or entity Person (except as may be set forth in other than Purchaser pursuant to this Agreement) has any rights in a right or right option to acquire the Real Property or any part thereofinterest in the Real Property.
(ii) There are no leases, rights of first refusal, options, rights of first offer or any other similar rights or interests with respect to the Real Property in favor of any third party.
(iii) There are no judgments presently outstanding and unsatisfied against the Seller, the Company, or the Real Property. There is no litigation, arbitration, or other legal or administrative suit, action, proceeding, or, to Seller’s knowledge, investigation pending or threatened against or involving the Company, the Seller, or the ownership or operation of the Real Property, including, but not limited to, any condemnation action relating to the Real Property.
(iv) Neither Seller nor the Company has received written notice of any material violation of any Laws or Regulations by any Governmental Authority having jurisdiction over the Real Property that has not been cured, corrected, or waived.
(v) To Seller’s knowledge, none of such Due Diligence Materials (including, without limitation, all Due Diligence Materials uploaded to the Data Room) contains any untrue statement of a material fact or omits to state a fact necessary to make the statement of fact contained therein not misleading in any material respect.
(vi) Seller is not, or will become, a person or entity with whom United States persons or entities are restricted or prohibited from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities;
(vii) Schedule III is a true, correct, and complete list of the Service Contracts. The Company is not a party to any Service Contracts that will be binding upon the Company after the Closing, other than those listed on Schedule III. The Company is in material compliance with each of the Service Contracts and, to Seller’s knowledge, no fact or circumstance has occurred which, by itself or with the passage of time or the giving of notice or both, would constitute a default by any party under any of the Service Contracts. Seller has made available to Purchaser true, correct, and complete copies of all Service Contracts.
(viii) Seller has not placed any, and to Seller’s knowledge, there are no Hazardous Materials installed, stored in, or otherwise existing at, on, in, or under the Real Property in violation of any Environmental Laws.
(ix) Schedule II is a true, correct, and complete list of the Existing Mortgage Documents, which have not been modified, amended, or terminated, in writing or otherwise, except as set out on Schedule II. Neither the Seller, the Company, nor any loan guarantor has given or received any notice of a default under any Existing Mortgage Document and, to the best of Seller’s knowledge, neither the Company nor any guarantor is in default under the terms of any Existing Mortgage Document. The Seller shall confirm the accuracy of Schedule II and update it as needed on or before three (3) Business Days after the Effective Date.
(b) With respect to Seller, the Company, and/or the Membership Interests, as applicable:
(i) Seller has received no written notice full legal capacity to execute and has no knowledge of any actual or threatened actiondeliver this Agreement and each document and instrument contemplated hereby (collectively, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, the “Transaction Documents”) to which would affect he is a party and perform his obligations hereunder and thereunder and to consummate the Propertytransactions contemplated hereby.
(cii) This Agreement and the Transaction Documents to which Seller has received no written notice is a party have been duly executed and has no knowledge delivered by Seller and, assuming the due authorization, execution and delivery of any governmental assessments concerning this Agreement and the PropertyTransaction Documents to which Seller is a party by each other party hereto and thereto, which are unpaidconstitute the valid and binding agreement of Seller enforceable against Seller in accordance with its terms, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(diii) Except for the third party consents set forth on Schedule 10.01(b)(iii), neither the execution, delivery, and performance of this Agreement, nor the consummation of the transactions contemplated hereby is prohibited by, or requires Seller or the Company to obtain any consent, authorization, approval, or registration under: (A) any law, statute, rule, regulation, judgment, order, writ, injunction, or decree which is binding upon Seller or the Company; or (B) any agreement to which Seller or the Company is a party.
(iv) Seller is not a “foreign person” within the meaning of Section 1445 of the Code.
(v) The Company is, and always has been, a limited liability company duly organized, validly existing, and in good standing under the laws of the State of their organization and the Company is duly qualified as a foreign limited liability company in the State of North Carolina. The Company has the requisite limited liability company power and authority to own, operate, lease, and encumber its assets and to carry on the Business as it has been and is now being conducted.
(vi) Schedule 10.01(b)(vi) is a true, correct, and complete list of all Organizational Documents of the Company as well as a true and correct organizational chart showing the ownership percentage(s) of the Company and any and all affiliates and subsidiaries. There are no knowledge other Organizational Documents between the Company and Seller or any other persons or entities, other than the agreements and documents listed on Schedule 10.01(b)(vi), true, correct, and complete copies of and has received no written notice of which have been made available to Purchaser.
(vii) The Company does not own, directly or indirectly, any violation of lawcapital stock or any other equity interest in any corporation, municipal or county ordinances or codespartnership, trust, limited liability company, or other legal requirements entity, whether incorporated or unincorporated, and the only property the Company owns is the Real Property and related operating accounts and reserve accounts.
(viii) The Membership Interests are validly issued, fully paid, and non-assessable. The Membership Interests owned by Seller and contemplated to be sold to Purchaser hereunder were issued in compliance with applicable Laws and constitute 100% of the total issued and outstanding membership interests in the Company. The Membership Interests were not issued in violation of the Organizational Documents of the Company or any other agreement, arrangement, or commitment to which Seller or the Company is a party and are not subject to or in violation of any preemptive or similar rights of any Person.
(ix) There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to any membership interests in the Company or obligating any Seller or the Company to issue or sell any membership interests (including the Membership Interests), or any other interest, in the Company. Other than the Organizational Documents, there are no voting trusts, proxies, or other agreements or understandings in effect with respect to the Propertyvoting or transfer of any of the Membership Interests. There are no outstanding obligations of the Company to repurchase, redeem, or otherwise acquire any Membership Interests.
(ex) The Property does not violate environmental laws applicable to it Seller owns the Membership Interests free and Seller has not used the Property for the generation, storage or handling clear of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyall Encumbrances.
(fxi) All Tax Returns of the Company and Seller is required by any federal, state, or local authority have been duly and properly filed, and to the extent any Taxes were due and payable by the Company, or required to be withheld for any employees of the Company, the Company caused all such Taxes to have been fully paid or withheld. There are no: (A) tax claims, audits, or proceedings pending or, as to Seller’s knowledge, threatened against the Company; (B) Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Closing Date will Company; or (C) Tax indemnity, Tax sharing, or Tax allocation agreements binding on the Company. The Company has complied with all information reporting and backup withholding provisions of applicable Law, except where failure to comply with any such Law would not subject the Company to any Material Adverse Effect. To Seller’s knowledge, no claim has been made by any taxing authority in any jurisdiction where the Company does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction. Seller has delivered to Purchaser true, correct, and complete copies of all federal, state, and local income, franchise, and similar Tax Returns, examination reports, and statements or deficiencies assessed against, or agreed to by, the owner of fee simpleCompany for all Tax periods ending after December 31, marketable title to the Property2014.
(gxii) None All agreements, oral or written (including, without limitation, any option agreements, right of first refusal agreements or right of first offer agreements), in effect for the purchase and sale of real property (other than pending home sales contracts to customers) by the Company are set forth on Schedule 10.01(b)(x) (the “Purchase and Sale Agreements”). Other than the Purchase and Sale Agreement, there are no other agreements, oral or written, currently in effect in connection with the Company’s purchase and sale of any real property. The copies of the lots Purchase and Sale Agreements provided to Purchaser are located in a flood plain areacomplete, true and correct. There are no defaults under any of the Purchase and Sale Agreements.
(hxiii) The Company has been treated as a disregarded entity for federal, state, and local income tax purposes since its formation;
(xiv) The reviewed and unaudited financial statements of the Company for fiscal years 2016, 2017, and 2018 and for the period ended December 31, 2019 attached hereto and incorporated herein as Schedule 10.01(b)(xiv) (“Financial Statements”) were prepared from the Company’s books of account on a GAAP basis consistently applied, are to the best of Seller’s knowledge accurate and complete, and to the best of Seller’s knowledge fairly present the financial condition, results of operations, and cash flows of the Company at the dates and for the periods indicated. To the best of Seller’s knowledge, the books of account of the Company accurately reflect all items of income and expense and all assets and liabilities of the Company, except as otherwise provided herein. To the best of Seller’s knowledge, the Company has no liabilities not covered by insurance that are not set forth on the Financial Statements.
(xv) No improvements actions, suits, claims, investigations, or repairs proceedings: (A) are pending or to the best of Seller’s knowledge threatened against or by the Company, Seller, or any affiliate of Seller relating to the Company or affecting the Membership Interests other than warranty and punch list work performed or being performed by the Company in the ordinary course of business; (B) are pending or to the best of Seller’s knowledge threatened against or by the Company, Seller, or any affiliate of Seller that challenges or seeks to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement; or (C) have been served upon the Company, nor has the Company initiated any court or administrative proceedings in any way involving or relating to the Company or the Membership Interests, nor have any of same been filed or threatened in writing with respect to the Company or the Membership Interests;
(xvi) Neither the Seller nor the Company have: (A) filed any voluntary or had involuntarily filed against it in any court or with any governmental body pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or seeking to effect any plan or other arrangement with creditors, or seeking the appointment of a receiver; (B) had a receiver, conservator, or liquidating agent or similar person appointed for all or a substantial portion of its assets; (C) suffered the attachment or other judicial seizure of all, or substantially all of its assets; (D) given notice to any person or governmental body of insolvency; or (E) made an assignment for the benefit of its creditors or taken any other similar action for the protection or benefit of its creditors. Neither the Seller nor the Company is insolvent or will be rendered insolvent by the consummation of the transactions under this Agreement;
(xvii) The only employees and independent contractors of the Company are those listed on Schedule 10.01(b)(xvii). There are no employees or independent contractors of the Company whose employment or engagement with the Company cannot be terminated prior to Closing. There are no union contracts, collective bargaining agreements or employment contracts affecting the Company. The Company does not employ more than one hundred (100) employees.
(xviii) Schedule 10.01(b)(xviii) contains a true and complete list of each Company Employee Plan. Seller has made available to Purchaser true and complete copies of each such Company Employee Plan, together with all amendments thereto (or a description, if such Company Employee Plan is not written), and, to the Property extent applicable with respect thereto: (i) all related trust agreements, insurance Contracts or other funding arrangements and amendment thereto, (ii) all current summary plan descriptions and summaries of material modifications; (ii) the annual report on behalf IRS Form 5500 series, including audited financial statements and any other attachments thereto, for the most recent plan year; (iii) the most recent actuarial valuation report; and (iv) the most recent IRS determination letter or opinion letter. Each Company Employee Plan complies, and has been operated in compliance, in all material respects with the requirements of Section 409A of the Seller during the 90 days immediately preceding the Closing Date which will Code. The Company does not be paid for in full as have any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director or consultant of the Closing DateCompany for any tax incurred by such service provider, and including under Section 409A or 4999 of the Code.
(xix) The Company has not been a member of an affiliated, combined, consolidated, or unitary tax group for tax purposes. The Company has no liability for taxes of any Person (other than the Company) under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local, or foreign law), as transferee or successor, by contract or otherwise.
(xx) Except for, there will be are no outstanding bills incurred for laborinvestment bankers, services and materials used in making improvements brokers, finders or repairs on the Property other intermediaries that have been retained by or are authorized to act on behalf of Seller or for services of architects, surveyors are entitled to any fee or engineers engaged by Sellercommission in connection with the transactions contemplated hereby.
(ixxi) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided Except for the benefit of the Seller on the Property of any kind against the PropertyEmployment Agreements, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of following the Closing Date there will not exist any ongoing contractual obligations between the Company and the Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearits affiliates.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Dream Finders Homes, Inc.), Membership Interest Purchase Agreement (Dream Finders Homes, Inc.)
Seller’s Representations and Warranties. As Seller hereby makes the following representations and warranties to Buyer, each of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatwhich shall be deemed material:
(a) No personSeller has good and marketable fee simple title to the Property, firmand there are no mechanics' liens, contractors' claims, unpaid bills for material or labor pertaining to the Property or any other similar liens which might adversely affect Seller's title to the Property, except for current ad valorem real estate taxes which shall be prorated on a per diem basis as of Closing based on the fiscal year of the taxing authority.
(b) There are no tenants or other persons or entities on the Property which will have a right of possession beyond the date of Closing.
(c) There are no pending, threatened or contemplated condemnation actions involving all or any portion of the Property and Seller has received no notice nor is Seller aware of any such action. If, between the Effective Date and the Closing, any portion of the Property is subject to pending, threatened or contemplated condemnation action by any governmental agency, Buyer shall have the option, in Buyer's sole discretion, of declaring this Agreement null and void and having the Binder Deposit refunded. Seller shall notify Buyer within three (3) business days of receipt of any information concerning any such condemnation action, and in turn Buyer must elect within ten (10) business days from the date of receipt of the said information whether to (i) declare this Agreement null and void and have the Binder Deposit refunded as stated above, whereupon the parties hereto shall have no further rights, obligations or liabilities with respect to each other hereunder, or entity (except ii) proceed to close the transaction and receive an assignment of all of Seller's right, title and interest in and to any condemnation award. If Buyer elects (ii), Seller shall fully cooperate, at no expense, however, to Seller, with Buyer in any condemnation action.
(d) As of the Closing, no maintenance, management, service, supply, employment or other contracts shall exist with respect to the Property which has not been approved by Buyer in writing.
(e) From the Effective Date until the Closing, Seller shall:
(1) Maintain the Property in the same condition as presently exists, reasonable wear and tear excepted.
(2) Perform all of its obligations under any contracts respecting the Property and promptly notify Buyer of any default thereunder.
(3) Provide Buyer and its representatives reasonable access to the Property and reasonable access to all engineering information, reports, soil tests, surveys, plans and records available to Seller relating to the Property.
(4) Refrain from entering into, or negotiating with regard to, any contract or commitment or from incurring any expenditure or obligation affecting the Property or the title thereto which would extend beyond the Closing or would involve payments that would not be paid in full prior to the Closing without the prior written consent of Buyer.
(5) Pay promptly all real and personal property taxes, assessments, sewer and water charges, other governmental levies when due, utility charges, indebtedness secured by deed(s) to secure debt or other liens, and, generally, all expenses (including repairs and replacements) incurred by Seller in the operation of the Property of every nature, whether ordinary or extraordinary, which may be set forth in arise out of or accrue because of the ownership or operation of the Property.
(6) Make no lease or rental of the Property or any portion thereof without the prior written consent of Buyer, or negotiate, actively market or enter into any other contract or option for the sale of the Property or any portion thereof, or further encumber the Property with any restriction or easement.
(f) The entry into this Agreement, the execution and delivery of all instruments and documents required to be executed and delivered under the terms hereof, and the performance of all acts necessary and appropriate for the full consummation of the transaction contemplated hereunder are consistent with, and not in violation of, and will not create any adverse condition under, any law, ordinance, rule, regulation, contract, agreement, or instrument to which Seller is a party or any law, ordinance, rule, regulation, judicial order or judgment of any nature under which Seller is bound. In addition, Seller has taken or caused to be taken all actions required to render this Agreement enforceable against Seller in accordance with its terms.
(g) Seller has not received, with respect to the Property, any rights notice from any insurance company, governmental agency, adjacent landowners or any other party of (i) any condition, defect, or inadequacy that, if not corrected, would result in termination of insurance coverage or right increase its costs, (ii) any violation of building codes and/or zoning ordinances, subdivision ordinances, watershed regulations, or other governmental laws, regulations or orders, (iii) any proceedings that could or would cause the change, redefinition, or other modification of the zoning classification, or of other legal requirements applicable to acquire the Property or any part thereof, or any property adjacent to the Property, (iv) any moratorium that could or would in any way impair the development and use of the Property for the Contemplated Use or (v) any significant adverse fact or condition relating to the Property or its Contemplated Use that has not been disclosed in writing to Buyer by Seller or that would prevent, limit, impede or render more costly the Contemplated Use.
(bh) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any is not a "foreign person, entity or governmental agency, " which would affect subject Buyer to the Propertywithholding tax provisions of Section 1445 of the Internal Revenue Code of 1986, as amended, and, at Closing, Seller agrees to deliver to Buyer a certification, under penalty of perjury, in a form approved under regulations promulgated pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, to the effect that Seller is not a foreign person.
(ci) Seller has received To the best of Seller's knowledge, no written notice and has no knowledge Substances have been or shall (to the extent controllable by Seller), prior to the Closing, be located, released (within the meaning of any governmental assessments concerning 42 X.X.X.xx. 9601(22)), stored, treated, generated, transported to or from, disposed of (within the meaning of 42 X.X.X.xx. 6903(3)) or allowed to escape on the Property, which including, without limitation, the surface and subsurface waters of the Property. To the best of Seller's knowledge, no ASTs or USTs are unpaid.
(d) Seller located on the Property or previously were located on the Property and subsequently removed or filled. To the best of Seller's knowledge, no portion of the Property has been used in the past for waste treatment, storage, or disposal, and no knowledge wetlands are located within the boundaries of the Property. To the best of Seller's knowledge, no endangered species of plants or animals shall be located within the boundaries of the Property and no portion of the Property has received been or, prior to Closing, shall be a critical habitat for an endangered species. To the best of Seller's knowledge, no written investigation, administrative or judicial order, governmental notice of any violation of lawnoncompliance or violation, municipal remediation action plan, consent order and agreement, administrative proceeding, civil or county ordinances criminal litigation or codessettlement under Statutes and Laws or with respect to Substances, ASTs or other legal requirements USTs is proposed, threatened, anticipated or in existence with respect to the Property.
(e) . The Property does not violate and Seller's operations thereon are and, to the best of Seller's knowledge, in the past have been in compliance with all applicable Statutes and Laws. No notice has been or will (to the best of Seller's knowledge, information and belief) prior to the Closing, be served on or delivered to Seller from any entity, governmental body or individual claiming any violation of any Statutes and Laws or demanding payment or contribution for environmental laws applicable cleanup costs, environmental damage, harm to it and endangered species, or injury to natural resources, or asserting liability with respect to same. Copies of any such notices received on or after the Effective Date (including after the Closing) shall be forwarded to Buyer within three (3) days of their receipt. If Seller has not used the Property for the generation, storage conducted or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title access to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities an "environmental audit" or other services provided for the benefit of the Seller on the Property of any kind against environmental study, report or information respecting the Property, other than those items which are pro-rated in connection Seller shall provide Buyer with Closinga true and complete copy of same within ten (10) days following the Effective Date.
(j) Seller No third party currently has made no representations any rights with respect to any county minerals, mining, or local authorities surface or any homeowners subsurface rights in the community regarding the type or style of the development of connection with the Property; and upon Closing, exceptBuyer will be vested with all such mineral, if any, for those disclosed in writing to Purchaser during the Feasibility Periodmining and other surface and subsurface rights free and clear of all claims of any third party.
(k) All labor performed In the event a subdivision is required pursuant to applicable law in connection with the conveyance of the Property to Buyer, Seller shall use its best efforts to cause the Property to be properly subdivided in compliance with such applicable law prior to Closing. Further, Buyer may (but is not obligated to) act on Seller's behalf to undertake all such actions required as a result of the sale of the Property to Buyer to comply with any applicable subdivision law; and, in such case, Seller agrees to fully cooperate with Buyer's efforts and materials supplied irrevocably appoints Buyer as Seller's attorney-in-fact (coupled with an interest) during the term of this Agreement for the purpose of complying with any applicable subdivision law, and Buyer shall be entitled to deduct costs and expenses incurred by Buyer to comply with such subdivision law from the Purchase Price to be paid by Buyer for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lienat Closing.
(l) Seller has no knowledge or information shall deliver to Buyer at Closing evidence satisfactory to Buyer, Buyer's attorneys and the Title Company with respect to the right, power and authority of any facts, circumstances, or other conditions, which do or would in any way adversely affect Seller's designated representative(s) to execute and deliver the Property, or closing documents and consummate the successful operation sale of the Property, except such evidence to include, without limitation, (i) an incumbency certificate and shareholder certificate signed and dated by the corporate secretary of Seller as specifically provided of the date of Closing certifying as to Purchaser in writing during the Feasibility Periodnames (and corporate titles, as applicable) of officers, directors and shareholders of Seller as of the date of Closing and (ii) corporate resolutions of Seller authorizing Seller to enter into this Agreement and to perform all of Seller's obligations hereunder, acting through designated corporate officers of Seller. All of the representations and warranties of Seller contained in this Agreement or any document or exhibit required to be executed by Seller pursuant hereto shall be true at the Closing as though such representations were made at such time; and, subject to the terms and correct provisions in the remainder of this paragraph, Seller shall execute and deliver an instrument satisfactory in form and substance to Buyer at Closing reaffirming all of said representations and warranties as of the date of Closing. If any such representation or warranty of Seller in this Agreement is not true when made and at the Closing Date (except to the extent any such representation, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Seller's reasonable control), Buyer may consider same as an event of default hereunder and may pursue such remedies as are set forth in Paragraph 15(B) herein. If any representation or warranty of Seller herein, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Seller's reasonable control, Buyer may not consider same as an event of default hereunder; but rather, in such case, Buyer may, at Buyer's option and as Buyer's sole remedy, terminate this Agreement and have the Binder Deposit refunded by Escrow Agent, whereupon the parties hereto shall re-certify have no further rights, obligations or liabilities with respect to each other hereunder. Further, if Seller acquires knowledge of any fact(s) rendering any of the foregoing representations and warranties on the Closing Date and false at any time prior to Closing, Seller shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period promptly notify Buyer in writing of one (1) yearsuch fact(s).
Appears in 2 contracts
Samples: Form 10 K, Purchase and Sale Agreement (Coca Cola Bottling Co Consolidated /De/)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)In addition to other representations herein, Seller represents and warrants to Purchaser Buyer as of the date of closing that:
(a) No person3.1 Seller, firmand the person signing on behalf of Seller, has full power and authority to execute this Agreement and perform Seller's obligations hereunder, and if Seller is a corporation, all necessary corporate action to authorize this transaction has been taken;
3.2 The Property is not subject to any leases, tenancies or entity (except as may be set forth rights of persons in this Agreement) has possession, and any rights in personal property is owned by Seller free and clear of any liens or right encumbrances;
3.3 Neither the Property nor the sale of the Property violates any applicable statute, ordinance or regulation, nor any order of any court or any governmental authority or agency, pertaining to acquire the Property or the use occupancy or condition thereof;
3.4 Seller is unaware of any part thereof.material defect in the Property;
(b) 3.5 All persons and corporations supplying labor, materials and equipment to the Property have been paid and there are no claims of liens;
3.6 There are no currently due and payable assessments for public improvements against the Property and Seller is not aware of any local improvement district or other taxing authority having jurisdiction over the Property in the process of formation;
3.7 The Property has legal access to all streets adjoining the Property;
3.8 Seller has received no written notice good and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.property;
(g) None 3.9 Seller is not a "foreign person" for purposes of Section 1445 of the lots are located Internal Revenue Code. Prior to closing, Seller shall execute and deliver to Closing Agent an affidavit in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf form of the attached Exhibit in order to meet the Foreign Investment in Real Property Tax Act ("FIRPTA") requirements of I.R.C. § 1445; and
3.10 Seller during the 90 days immediately preceding the Closing Date which will has not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property received notification of any kind against from any agency suggesting that the PropertyProperty is or may be targeted for a governmental cleanup. To the best of Seller's knowledge, other than those items which are pro-rated in connection with Closingneither the Property nor any portion thereof is or has been used as a landfill, waste storage or disposal site, or for the storage or disposal of any chemicals, petroleum or oil products, or hazardous or dangerous wastes or substances.
(j) 8.11 The Seller has made no representations to any county or local authorities or any homeowners in provided the community regarding Buyer with the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.following reports and studies:
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.b. ; and
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective date hereof and as of the Closing Date (unless a different date is specifiedas evidenced by Seller’s downdate certificate to be provided at Closing), Seller represents represents, warrants and warrants covenants to Purchaser that:
(a) No personOther than the Tenant under the Lease, firmwhich Lease shall be effective at Closing, or entity (except as may there are and there will be set forth no parties in this Agreement) has possession of any rights in or right to acquire portion of the Property as lessees or any part thereof.
(b) Seller sublessees, and no other party has received no been granted an oral or written notice and has no knowledge license, lease, sublease, option, purchase agreement or other right pertaining to the use, purchase or possession of any actual portion of the Property. Except as otherwise disclosed, all Contracts are valid and binding in accordance with their respective terms and conditions, are in full force and effect, and have no uncured breach or threatened action, litigation, rezoning, condemnation or proceeding default by any personparty, entity and no off-sets or governmental agencydefenses are available to any party under any Contract. All Contracts are cancellable upon not more than thirty (30) days prior written notice. There are no leasing brokerage agreements, which would affect leasing commission agreements or other agreements providing for the Property.
(c) Seller has received no written notice and has no knowledge payment of any governmental assessments concerning the Propertyamounts, which are unpaid.
(d) Seller has and no knowledge of and has received no written notice of any violation of lawcommissions due, municipal or county ordinances or codes, or other legal requirements for leasing activities with respect to the Property.
(eb) The Property does not violate environmental laws applicable to it and Seller has not used received notice of any default (nor is there any default) under any note, mortgage, deed of trust or other security interest or loan document or indebtedness related to or secured by the Property. The execution and delivery of this Agreement, the consummation of the transaction herein contemplated and the compliance with the terms and provisions hereof will not conflict with or (with or without notice or the passage of time or both) result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, loan agreement or instrument to which the Seller is a party or by which the Seller or the Property for is bound, any applicable regulation or any judgment, order or decree of any court having jurisdiction over the generation, storage Seller or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fc) The Seller has not received any notice, nor is orthe Seller aware, as of the Closing Date will beany violation of any ordinance, the owner of fee simpleregulation, marketable title law, statute, rule or restriction relating to the Property.
(gd) None of the lots There are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Dateno attachments, and there will be no outstanding bills incurred for laborexecutions, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided assignments for the benefit of the Seller on the Property of creditors, or voluntary or involuntary proceedings in bankruptcy or under any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien applicable debtor relief laws or any other lien.
(l) litigation contemplated by or pending or threatened against the Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (GLADSTONE LAND Corp)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)By signing this Unit Transfer Agreement and Application Form, Seller represents and warrants to Purchaser thatHeron Lake that he, she or it:
(a) No persona. Has received all financial and other information about Heron Lake that he, firmshe or it deems necessary or appropriate to form a decision regarding the sale and transfer of units hereunder;
b. Has had an opportunity to obtain, and has received, any additional information about Heron Lake, and has had an opportunity to ask such questions of, and receive answers from, Heron Lake or an authorized agent or representative of Heron Lake, to the extent Seller deems necessary or appropriate to form a decision regarding the sale and transfer of units hereunder;
c. As a result, has sufficient knowledge and information about the business, management, financial affairs and future prospects of Heron Lake he, she or it deems necessary or appropriate to make a decision regarding the sale and transfer of units hereunder;
d. Has such knowledge and experience in financial and business matters that he, she or it is capable of evaluating the merits and risks of the purchase and transfer of units hereunder or has obtained, to the extent he, she or it deems necessary, his, her, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements its own professional advice with respect to the Property.decision to purchase and transfer units hereunder;
(e) The Property does not violate environmental laws applicable to it and Seller has not used e. Understands the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as effect of the Closing Date will beallocation provisions and payment of distributions provisions of this TAA Form, including those set forth in Section 4 of Paragraph D. above;
f. Understands and agrees that Heron Lake has made and makes no representation or warranty to Buyer regarding the owner of fee simple, marketable title to the Property.
(g) None fairness or adequacy of the lots are located in a flood plain area.
(h) No improvements or repairs purchase price of the units to be transferred hereunder, and that the negotiation and agreement to transfer the units have been made solely by Seller without the assistance or will be made involvement of Heron Lake; and
g. Agrees to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold Heron Lake harmless the other party for any and all damages, loss, damagescost, costs or liabilities incurred due liability (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from the transfer of units from Seller to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearBuyer.
Appears in 2 contracts
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)material inducement to Purchaser, Seller represents and warrants to Purchaser that, as of the date of this Agreement and as of the Closing Date:
(a) No personthere are no actions, firmsuits, or entity (except as may be set forth in proceedings pending, or, to the knowledge of Seller, threatened, against Seller or the Premises, or involving the validity or enforceability of this Agreement) has any rights in , including, but not limited to, petitions under the Bankruptcy Act of 1978 or right to acquire other petitions for reorganization or for debtor relief or for the Property or any part thereof.appointment of a receiver;
(b) the execution and delivery of this Agreement by Seller and the performance and observance of the terms have all been authorized by all necessary actions of Seller. This Agreement has received no written notice been duly executed and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding delivered by any person, entity or governmental agency, which would affect the Property.Seller. This Agreement is in full force and is enforceable against Seller in accordance with its terms;
(c) Seller has received no written notice owns good, Marketable, and has no knowledge Insurable fee simple title free of any governmental assessments concerning all Title Defects for the real property. Seller owns good title free of all Title Defects for the balance of the Property, which are unpaid.;
(d) Seller has no knowledge of and has received no written notice of the Premises have not suffered any violation of lawdamage by fire, municipal or county ordinances or codeswindstorm, or other legal requirements with respect hazard that is not fully covered by insurance (or if covered by insurance, that would make it economically impractical for the Premises to be restored or repaired) and that have not been fully restored, repaired, and rebuilt and no condemnation or other proceedings prohibiting the Property.full use of the Premises as originally contemplated by the parties have been instituted or threatened;
(e) The Property does not violate environmental laws applicable to it and Seller has not used not, without the Property prior written approval of Purchaser, incurred any liability or obligation for leasing commissions to any broker or agent in connection with the generation, storage or handling making of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.Leases;
(f) Seller is orthe Plans and Specifications and the Premises, as when Completed, will comply with all applicable Requirements of the Closing Date will be, the owner of fee simple, marketable title to the Property.Governmental Authorities having jurisdiction; and
(g) None the Improvements, when Completed in accordance with the Plans and Specifications, as previously approved by the City of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or Atwater, will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Sellerstructurally sound.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Improved Realty, Agreement of Purchase and Sale of Improved Realty
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser Buyer that:
(a) No personHe owns all right, firm, or entity (except as may be set forth title and interest in this Agreement) has any rights in or right and to acquire the Property or any part thereofIntellectual Property.
(b) Seller has received There are no written notice assignments, transfers, conveyances, or Liens affecting his right, title and has no knowledge of any actual interest in or threatened action, litigation, rezoning, condemnation to the Intellectual Property that are currently in force or proceeding by any person, entity or governmental agency, which would affect currently existing that will in the Propertyfuture come into force.
(c) Seller has received no written notice the sole right to grant the rights hereunder and has no knowledge of not granted any governmental assessments concerning right or license to any Third Party to use the Intellectual Property, which are unpaidincluding any rights of first or last refusal or other options to negotiate rights in the Intellectual Property.
(d) Seller has no knowledge of and has received no written notice of any violation of lawNo royalties, municipal or county ordinances or codes, honoraria or other legal requirements with respect fees are payable to any Third Party for the use of or right to use any Intellectual Property.
(e) The Intellectual Property does not infringe any patent, copyright or trademark of any Third Party or otherwise violate environmental laws applicable to it the rights of any Third Party and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there no claim has been no release of a hazardous substance on made or from the Propertythreatened alleging any such violation.
(f) To Seller’s knowledge, no Third Party has violated any right of Seller is or, as of in the Closing Date will be, the owner of fee simple, marketable title to the Intellectual Property.
(g) None No Third Party has challenged the ownership, use, validity or enforceability of the lots are located in a flood plain areaIntellectual Property.
(h) No improvements or repairs have been made or will be made to the Property on behalf None of the Seller during execution, delivery or performance of this Agreement by the 90 days immediately preceding Seller, the Closing Date which will not be paid for in full as consummation by it of its obligations hereunder, or compliance by it with any of the Closing Date, and there provisions of this Agreement will be no outstanding bills incurred for labor, services and materials used result in making improvements the loss or repairs on impairment of the Property on behalf of Seller Seller’s or for services of architects, surveyors the Buyer’s right to own or engineers engaged by Selleruse the Intellectual Property.
(i) As Seller will acquire its Shares hereunder for his own account and not with a view to, or for sale in connection with, the distribution thereof within the meaning of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments Securities Act. Seller is an “accredited investor” within the meaning of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for Paragraph (a) of Rule 501 promulgated by the benefit of Securities and Exchange Commission under the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with ClosingSecurities Act.
(j) Seller acknowledges that, during the course of this transaction and prior to his acquisition of any Shares hereunder, he has made no representations had the opportunity to any county or local authorities or any homeowners ask questions of and receive answers from representatives of the Buyer concerning the Shares, and to obtain additional information, documents, records and books relative to the Buyer, its business, and an investment in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility PeriodBuyer.
(k) All labor performed Seller further represents that he understands and materials supplied for agrees that all certificates evidencing any of the Property Shares whether upon initial issuance or upon any transfer thereof, shall bear a legend, prominently stamped or printed thereon, reading substantially as follows: “The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or any other securities laws. These securities have been fully paid by Selleracquired for investment and not with a view to distribution or resale. Such securities may not be offered for sale, sold, delivered after sale, transferred, pledged or hypothecated in the absence of an effective registration statement covering such securities under the Securities Act of 1933, as amended, and any person for other applicable securities laws, unless the holder shall have obtained an opinion of counsel reasonably satisfactory to the corporation that such labor or materials may claim no mechanic's lien or any other lienregistration is not required.”
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation understands that none of the PropertyShares have been registered under the Securities Act or any other applicable securities laws, and, therefore, cannot be resold unless they are subsequently registered under the Securities Act and other applicable securities laws or unless an exemption from such registration is available. Seller agrees not to resell or otherwise dispose of all or any part of the Shares acquired by it except as specifically provided permitted by law, including, without limitation, any regulations under the Securities Act and other applicable securities laws. Seller acknowledges and understands that the Buyer does not have any present intention and is under no obligation to Purchaser in writing during register the Feasibility Period. All of Shares or under the representations Securities Act and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearapplicable securities laws.
Appears in 2 contracts
Samples: Intellectual Property Purchase Agreement, Intellectual Property Purchase Agreement (Higher One Holdings, Inc.)
Seller’s Representations and Warranties. As Seller hereby makes the following representations and warranties to Purchaser, each of which shall be true on the Effective Date (unless a different and on the date of Closing. Seller shall immediately provide Purchaser with written notice of any event which would make any representation or warranty set forth below materially incorrect or untrue, and upon receipt of such notice, Purchaser may elect to terminate this Agreement. Upon Purchaser’s election to terminate, this Agreement shall be without any further force and effect, and without further obligation of either part to the other. If this Agreement is specified)terminated under this section, Seller represents and warrants the Xxxxxxx Money Deposit shall be returned to Purchaser that:Purchaser.
(a) No personSeller has full power and authority to enter into and carry out the terms and provisions of this Agreement and to execute and deliver all documents which are contemplated by this Agreement, firmand all actions of Seller necessary to confer such authority upon the persons executing this Agreement and such other documents will have been, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofwill be, taken.
(b) Seller has not received no any written notice and has no knowledge from any governmental authorities or regulatory agencies that eminent domain proceedings for the condemnation of any actual the Property are pending or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertythreatened.
(c) Seller has not received no any written notice of pending or threatened investigation, litigation or other proceeding before a local governmental body or regulatory agency which would materially and has no knowledge of any governmental assessments concerning adversely affect the Property, which are unpaid.
(d) Seller has no knowledge of and has not received no any written notice from any governmental authority or regulatory agency that Seller’s use of the Property is presently in violation of any violation of applicable zoning, land use or other law, municipal order, ordinance or county ordinances or codes, or other legal requirements with respect to regulation affecting the Property.
(e) The To Seller’s knowledge, no special or general assessments have been levied against the Property does not violate environmental laws applicable to it except those disclosed in the Preliminary Title Report, and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyreceived written notice that any such assessments are threatened.
(f) Seller is or, as not a “foreign person” for purposes of Section 1445 of the Closing Date will be, the owner of fee simple, marketable title to the PropertyInternal Revenue Code.
(g) None Seller is a Washington municipal corporation, duly formed and organized, validly existing and in good standing under the laws of the lots are located in a flood plain areaState of Washington.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Seller’s Representations and Warranties. As of Seller makes the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the following representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the to Purchaser, which representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year:
A. Seller has full power and authority to enter into this Agreement and to perform and carry out all obligations, covenants and provisions hereof.
B. Seller has received no notice that the Property is now in violation of any laws, governmental orders, regulations, statutes or ordinances with the exception of a Notice of Violation dated August 15, 2000, a copy of which has been previously provided to Purchaser.
C. Seller has not contracted for the furnishing of labor or materials to the Property which will not be paid in full prior to Closing, or which would give rise to a claim of a construction lien
D. Seller has no notice of and there is no pending or, to the best of Seller's knowledge, threatened litigation, administrative action or examination relating to the Property before any court, or any federal, state or municipal governmental department, commission, board, agency or instrumentality thereof with the exception of a pending construction project for effluent conduit and rain improvement and a potential temporary or permanent easement with respect to same (i.e., Detroit Water and Sewer Department, Oakwood CSO control facility and Pump Station ("Project").
E. Upon execution of this Agreement, Seller shall furnish to Purchaser a copy of the notice received by Seller regarding a potential City of Detroit wastewater treatment facility near the Property, which may include the granting, taking of certain easement rights and/or loss of the railroad side track currently benefiting the Property. Purchaser shall have the right to evaluate this matter during Purchaser's Inspection Period. Any money or damage award paid to the owners or occupants of the Property at any time after the date of this Agreement shall be the property of Purchaser if the transaction closes. Seller shall not grant any deeds, easements or other property rights to the City of Detroit or anyone else without first obtaining the prior written authorization and consent of Purchaser.
F. Performance of this Agreement by Seller will not result in a breach of, or constitute a default under, or result in the imposition of, any lien or encumbrance upon the Property under any agreement or other instrument to which the Seller is a party or by which Seller or the Property is bound, except as referenced in Paragraph 9.B. of this Agreement.
G. To the best of Seller's actual knowledge, there are no latent or hidden material adverse environmental conditions respecting the Property except those matters set forth in any environmental reports or documents which are in the possession or control of Seller or Seller's counsel. To the best of Seller's actual knowledge, a list of all such environmental reports and documents is described in the attached EXHIBIT "B" ("Environmental Reports"). Seller shall furnish Purchaser with a complete copy of all Environmental Reports within five (5) business days after full execution of this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Voyager Petroleum, Inc.), Purchase and Sale Agreement (Voyager Petroleum, Inc.)
Seller’s Representations and Warranties. As (a) To the best of the Effective Date (unless a different date is specified)Seller’s knowledge, Seller represents makes the following representations and warrants warranties to Purchaser thatPurchaser:
(ai) Seller is not in possession of any inspections that have not been provided to Purchaser, nor have any inspections been conducted by or on behalf of Seller that have not been provided to Purchaser;
(ii) Sellers have truthfully and fully provided to Purchaser any and all information relating to conditions in, on, under or from the Land that is known to the Seller and that is contained in files and records of the Seller, including but not limited to any reports relating to Hazardous Materials in, on, under or from the Land and/or to the condition of the Property;
(iii) Seller has not at any time engaged in, caused or permitted any Prohibited Activities or Conditions;
(iv) To the best of Seller’s knowledge, no Prohibited Activities or Conditions exist or have existed on the Land owned by Seller;
(v) No person, firmevent has occurred with respect to the Land that constitutes, or entity with the passing of time or the giving of notice would constitute, noncompliance with the terms of any environmental permit;
(except as may be set forth in this Agreementvi) There are no actions, suits, claims or proceedings pending or, to the best of Seller’s knowledge, threatened that involve the Land and allege, arise out of or relate to any Prohibited Activity or Condition; and
(vii) Seller has no knowledge or reason to know of any rights in violation or right condition that would create liability to acquire the Property any owner or operator, with respect to, and has not received any complaint, order, notice of violation or other communication from any Governmental Authority with regard to air emissions, water discharges, or Hazardous Materials, or any part thereofother environmental, health or safety matters affecting the Land.
(b) Seller has received no written notice and has no knowledge is the sole owner of the Property with full right to sell or dispose of the same as it may choose at Closing. No other person(s) or entity whatsoever have any actual claim, right, title, interest or threatened actionlien in, litigation, rezoning, condemnation against or proceeding by any person, entity or governmental agency, which would affect to the Property. Seller is not a “foreign person” or “foreign entity” as that term is defined in Section 1445 of the Internal Revenue Code of 1986.
(c) Seller has received owes no written notice obligations and has contracted no knowledge of any governmental assessments concerning liabilities affecting the Property, other than those which are unpaidwill be discharged by Seller at or prior to Closing.
(d) Seller has no knowledge of and has received no written notice of any violation of lawNo litigation or proceedings, municipal or county ordinances or codeslegal, equitable, administrative, arbitration, or other legal requirements with respect to otherwise, are pending or threatened which might affect the Property, or the consummation of the purchase and sale contemplated by this Agreement.
(e) The Property does not violate environmental laws applicable All taxes, whether local, state, or federal levied or assessed related to it and Seller has not used the Property for have been paid in full. There are no pending tax examinations or tax claims asserted against Seller or the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from the Propertybases for any such claims.
(f) Seller has no obligations, rights, or benefits under, nor is orit bound by or a party to, as of the Closing Date will beany material contract, the owner of fee simplecommitment, marketable title lease, or instrument relating to the Property.
(g) None Seller has the legal authority and power to enter into this Agreement and to complete the Closing and the transactions contemplated within this Agreement, and has complied with the applicable requirements for the North Royalton Charter. Neither the execution nor delivery of this Agreement, nor Seller’s performance of this Agreement, is restricted by, or violates, any contractual or other obligations of Seller, or requires the lots are located in a flood plain areaconsent of any third party.
(h) No There is no outstanding assessment for local improvements that has or repairs may become a lien against the Property. Seller knows of no public improvements that have been ordered to be made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will that have not be paid for in full as of the Closing Datebeen completed, assessed, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Sellerpaid for.
(i) As To the best of Seller’s knowledge, there are no plans for condemnation or taking by eminent domain of the Closing Date, there will be no unpaid bills Property or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit part of the Property, and Seller on the Property has received no written notice nor official notice of any kind such proceedings against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county None of the Property is located in an area identified by an agency or department of federal, state or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Periodgovernment as having special flood hazards.
(k) All labor performed and materials supplied for There are no other sales contracts pending, or concluded within the last 12 months, with respect to the Property, or any part of the property. Except as contemplated by this Agreement, within the last 12 months no part of the Property have been fully paid by Sellerhas been, and any person for such labor or materials may claim no mechanic's lien will be, conveyed or transferred to any other lienparty.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the The foregoing representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall will survive the Closing for a period and the recordation of one (1) yearthe deed.
Appears in 2 contracts
Samples: Mutual Termination Agreement, Purchase and Sale Agreement
Seller’s Representations and Warranties. As In consideration of Buyer's entering into this Agreement and as an inducement to Buyer to purchase the Effective Date (unless a different date is specified)Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(a) No personSeller has the legal right, firmpower and authority to enter into this Agreement and to consummate the transactions contemplated hereby, or entity (and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, except as may be otherwise expressly set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofherein.
(b) There is no agreement to which Seller is a party or to Seller's Actual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) To Seller's Actual Knowledge (as such term is defined below), except as disclosed on SCHEDULE 1 attached hereto, Seller has received no written notice and has no knowledge from any governmental agency of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect proceedings relating to the Property.
(ed) The Property does not violate environmental laws applicable to it and To Seller's Actual Knowledge, except as disclosed on SCHEDULE 1 attached hereto, Seller has not used received written notice of any litigation which has been filed against Seller that arises out of the ownership of the Property for and would materially affect the generationProperty or use thereof, storage or handling Seller's ability to perform hereunder.
(e) To Seller's Actual Knowledge, except as disclosed on SCHEDULE 1 attached hereto, Seller has not received written notice from any governmental agency of hazardous materials any uncured violation of any federal, state or contaminants and there has been no release local law relating to the use or operation of a hazardous substance on the Property which would materially adversely affect the Property or from the Propertyuse thereof.
(f) To Seller's Actual Knowledge, Seller is or, as has made available to Buyer all material documents in its possession with respect to the physical condition of the Closing Date will beProperty, or that would be binding upon the owner Property after the Close of fee simple, marketable title to Escrow and that are not recorded against the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will To Seller's Actual Knowledge, Seller's property manager, CB Xxxxxxx Xxxxx, has not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated committed fraud in connection with Closing.
(j) Seller has made no representations to its preparation of any county or local authorities or any homeowners in the community regarding the type or style of the development Property related operational financial information made available to Buyer as part of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility PeriodProperty Information.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp), Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
Seller’s Representations and Warranties. As To induce Buyer to enter into this Agreement and to purchase the Property being conveyed hereunder, Seller makes the following representations and warranties, all of which are true as of the Effective Date (unless a different date is specified), Seller represents hereof and warrants to Purchaser thatshall be true as of the date of Closing:
(a) No personSeller presently owns good and marketable fee simple title to the Property.
(b) Seller has not received any notice of assessments for public improvements against the Property which remain unpaid.
(c) There are no judgments or decrees of any kind against Seller unpaid or unsatisfied of record at any court of any city, firmcounty, or entity state or of the United States of America, or any pending or threatened litigation, which would affect the Property.
(except as may be set forth d) Seller is not in this Agreementthe hands of a receiver nor is it insolvent.
(e) Seller has not received any rights in notice of condemnation or right to acquire eminent domain proceedings, which would affect the Property or any part thereof.
(bf) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation, and to the best of Seller’s knowledge, there exist no violations or notices of violation of law, municipal ordinance, governmental ordinance, orders, rules, regulations or county ordinances requirements against or codesaffecting the Property, or other legal requirements with respect any part thereof.
(g) There are no actions or proceedings pending or, to the best of Seller’s knowledge, threatened, before any court or administrative agency, relating to the Property.
(eh) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants all necessary power to execute and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as deliver this Agreement and to perform all of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf obligations of Seller or for services of architects, surveyors or engineers engaged by Sellerhereunder.
(i) As Seller is duly organized, validly existing and in good standing under the laws of the Closing DateState of Iowa and has full capacity, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on power and authority to convey the Property to Buyer in accordance with the terms and conditions of any kind against the Property, other than those items which are pro-rated in connection with Closingthis Agreement.
(j) Seller has made no representations to Neither the execution and delivery of this Agreement, the consummation of the transactions herein contemplated, nor the compliance with the terms, conditions and provisions hereof will conflict with, or result in a breach of, any county of the terms, conditions or local authorities provisions of Seller’s Articles of Organization or Operating Agreement, or any homeowners in the community regarding the type agreement or style of the development of the Property, except, if any, for those disclosed in writing instrument to Purchaser during the Feasibility Periodwhich Seller is a party or by which it is bound.
(k) All labor performed and materials supplied for There is no lender or other person that is required to approve or consent to the conveyance of the Property to Buyer and no person shall have been fully paid by any right to object or contest such conveyance, construction or use. To Seller’s knowledge, and no person, firm or other legal entity has any person for such labor right or materials may claim no mechanic's lien option whatsoever to acquire the Property or any other lien.
(l) Seller has no knowledge portions thereof or information of any facts, circumstances, interest or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Periodinterests therein. All of the above representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one six (16) yearmonths.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Eaco Corp), Purchase and Sale Agreement (Eaco Corp)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby represents and warrants to Purchaser thatBuyer, as of the date hereof and the Closing Date, as follows:
a. Seller has been duly formed and is validly existing under the laws of its jurisdiction of formation, that it has all requisite power and authority to enter into and deliver this Agreement and to perform its obligations under this Agreement, that the execution and delivery of this Agreement by it and the performance by it of its obligations under this Agreement has been duly authorized by all necessary action on its part, and that this Agreement constitutes a legally binding agreement enforceable against it in accordance with its terms.
b. Seller holds marketable title to the Subject Property and Seller has the full right, legal capacity and means to transfer the Subject Property without obtaining the consent or approval of any governmental authority or any other person or entity to which Seller or any of Seller’s property may be subject, subject only to Permitted Exceptions. Seller has not previously granted, conveyed, sold, mortgaged, pledged, hypothecated or otherwise transferred any interest in the Subject Property to any other person or entity.
c. Seller has not received written notice of any claims, actions, suits, or other proceedings pending or, to Seller’s Knowledge, threatened by any governmental department or agency, or any other entity or person, pertaining to the Subject Property.
d. The execution, delivery, and performance by Seller of this Agreement does not and will not conflict with, or result in the breach or termination of any provision of, or constitute a default under, any indenture, mortgage, deed of trust, lease, contract, or other instrument or agreement or any order, judgment, award, or decree to which Seller is subject or by which the assets of Seller may be bound, or result in the creation of a lien, charge, or encumbrance upon the Subject Property. Provided, however, Xxxxx is aware of the AES Option and that the X.X. Xxxxxx ROFR will need to be resolved before the Closing.
e. Other than any general real property taxes for the years 2023 and thereafter, and other matters of public record, there are no liabilities or obligations, including any mortgages or other financial liens, related to the Subject Property which Seller is obligated to satisfy on or before the Closing or any such liabilities and obligations which Buyer may be obligated to satisfy after the Closing and which arise by, through or under Seller. Seller shall satisfy and have released any and all financial liens and mortgages currently encumbering the Subject Property on or before the Closing Date.
f. To Seller’s Knowledge, there is no adverse claim or challenge against or to the ownership of the Subject Property nor is there any basis therefor. Except as provided below concerning the AES Option and the X.X. Xxxxxx ROFR, there are no outstanding agreements or rights or options to acquire or purchase the Subject Property or any portion thereof that were entered into by Seller. To Seller’s Knowledge, no person, firm or corporation has any proprietary or possessory interest in the Subject Property other than Seller and Buyer pursuant to this Agreement, and, except for matters of record, no person is entitled to any royalty or other payment in the nature of rent or royalty on any mineral products therefrom.
g. To Seller’s Knowledge, all documents delivered to Buyer by Seller pursuant to this Agreement, to the extent in the possession or under the control of Seller, are complete and correct copies of originals. Seller does not make, and shall not be deemed to have made, any representation or warranty with respect to any part or all of the Subject Property Information prepared or submitted by parties other than Seller.
h. Except as incident to mining and agricultural operations on the Subject Property, neither Seller nor, to Seller’s Knowledge, has any third party:
(ai) No personCaused or permitted the Subject Property to be used to generate, firmmanufacture, refine, transport, treat, store, use, handle, dispose of, transfer, produce, process, contain or be constructed of a “Hazardous Material” (as defined below), except in compliance with all Applicable Law; or
(ii) Caused, permitted, authorized, or entity has knowledge of the presence or release or threat of release of any Hazardous Material in, on, under, or migrating to or from the Subject Property; or
(except as may be set forth in this Agreementiii) has Received any rights in notice or right other information, whether written or oral and whether actual or to acquire the Property Seller’s Knowledge threatened, from any governmental agency or authority or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, other entity or individual, whether governmental agencyor private, concerning or alleging any liability of Seller or other persons or entities with respect to the Environmental Condition of the Subject Property, or any intentional or unintentional act or omission or any fact or condition which would affect has resulted or which may result in any Environmental Condition in, on, under, or adjacent to the Subject Property.
(civ) Seller has received no written notice For purposes of this Agreement, “Environmental Condition” means (i) contamination or pollution of soil, air, surface or groundwater, (ii) the disposal, placement, existence, presence or release of a Hazardous Material and has no knowledge of any governmental assessments concerning the Propertyaffects thereof, which are unpaid.
(diii) Seller has no knowledge of and has received no written notice of any noncompliance with or violation of lawApplicable Law including, municipal without limitation, any lack of required governmental permits or county ordinances or codesapprovals, “Hazardous Material” means (iv) any substance, the presence of which requires investigation, remediation, or other legal requirements with respect to the Property.
response or corrective action under Applicable Law, or (ev) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of any substance which is defined as a hazardous substance on waste, hazardous substance, extremely hazardous substance, hazardous material, hazardous matter, hazardous chemical, toxic substance, toxic chemical, pollutant or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstancescontaminant, or other conditionssimilar term, which do in or would in any way adversely affect the Propertypursuant to Applicable Law, or (vi) any asbestos or asbestos-containing material, PCBs or equipment or articles containing PCBs, petroleum, diesel fuel, gasoline or other petroleum hydrocarbons, and “Applicable Law” means all existing federal, state or local laws, common law, statutes or regulations, including, without limitation, those relating to the successful operation protection of human health and safety, protection of the Propertyenvironment, except as specifically provided to Purchaser in writing during the Feasibility Period. All or prevention of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearpollution.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ivanhoe Electric Inc.), Purchase and Sale Agreement (Ivanhoe Electric Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows as of the Effective Date and as of the Closing Date:
(a) No personSeller is a corporation duly formed, firmvalidly existing and in good standing under the laws of the State of Texas, or entity (except as may be set forth and is duly qualified to do business in the State of California, and has full power and authority to enter into this Agreement) has any rights in or right Agreement and to acquire consummate the Property or any part thereoftransactions contemplated herein.
(b) This Agreement and all documents executed by Seller has received no written notice that are to be delivered to Buyer at the Closing are, or at the time of Closing will be, duly authorized, executed and has no knowledge delivered by Seller, and the person executing this Agreement and all such documents on behalf of Seller is and shall be duly authorized to so execute and deliver this Agreement and such documents on behalf of Seller. This Agreement and all documents executed by Seller that are to be delivered to Buyer at the Closing are, or at the Closing will be, legal, valid and binding obligations of Seller, and do not, and at the time of Closing will not, violate any provisions of any actual agreement or threatened action, litigation, rezoning, condemnation judicial order to which Seller is a party or proceeding by any person, entity or governmental agency, to which would affect the PropertySeller is subject.
(c) Seller has not received no written notice and has no knowledge of any governmental assessments concerning pending or threatened condemnation affecting the Property, which are unpaidProperty and to the best of seller's actual knowledge no such matter exists.
(d) Seller has no knowledge of and has not received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect litigation affecting the Property which would have a material adverse effect upon the Property after the Closing Date and to the Propertybest of seller's actual knowledge no such matter exists.
(e) The Property does Seller is not violate environmental laws applicable to it and Seller has not used a foreign person as defined in Section 1445 of the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the PropertyIRC.
(f) Seller is or, as has commenced a voluntary Chapter 11 petition under the United States Bankruptcy Code.
(g) There are no leases or other occupancy agreement affecting any portion of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will has not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments received any written notice of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property violations of any kind against laws, statutes, ordinance or regulations applicable to the Property, other than those items which are pro-rated in connection with Closingand to Seller's actual knowledge no such violations exist.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby represents and warrants to Purchaser thatthat all Recitals set forth above are true, correct and complete and, further, as follows:
3.1.1 Seller has the right and authority to execute and deliver this Agreement and all documents now or hereafter to be executed by it pursuant to this Agreement, to transfer and convey the Property to Purchaser and to perform its obligations hereunder.
3.1.2 Seller has paid all Taxes, including penalties and interest that were due on or before such date and during Seller’s ownership of the Resort including, without limitation, all sales and use taxes required to be paid or collected during Seller’s ownership and operation of the Resort (collectively, “Sales Taxes”) (which amounts have been collected and paid, in the ordinary course of business, to the appropriate Governmental Authority) through the Closing. There are no (i) actions currently pending or, to Seller’s Knowledge, threatened against the Resort by any Governmental Authority for the assessment or collection of Taxes; (ii) audits or other examinations in progress nor has the Resort nor Seller been notified in writing of any request for examination; or (iii) claims for assessment or collection of Taxes that have been asserted in writing against Seller. There are no outstanding agreements, waivers or consents extending the statutory period of limitations applicable to any Taxes of Seller.
3.1.3 Neither Seller nor any of its Subsidiaries has (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition in bankruptcy by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets; or (v) admitted in writing its inability to pay its debts as they became due.
3.1.4 Neither Seller nor any of its Subsidiaries is (i) listed on the Specially Designated Nationals and Blocked Persons List or any other similar list maintained by the Office of Foreign Assets Control, Department of the Treasury, pursuant to any authorizing statute, executive order or regulation; (ii) a “specially designated global terrorist” or other person listed on Appendix A to Chapter V of 31 C.F.R., as the same has been from time to time updated and amended; or (iii) a Person either (a) No personincluded within the term “designated national” as defined in the Cuban Assets Control Regulations, firm, 31 C.F.R. Part 515; or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or a person similarly designated under any related enabling legislation or any other similar Executive Orders.
3.1.5 Except as set forth on Schedule 3.1.5, there is no written notice and has no knowledge of any actual or threatened actionlawsuit, litigation, rezoningarbitration, condemnation or other proceeding by currently affecting the Property (including, without limitation, any personsuch proceeding regarding personal injury, entity property damage or governmental agencybreach of contract, or with respect to any rental program participation agreements, or with respect to the fire damage to the building, improvements, equipment and other real and personal property formerly operated at the Resort as “Tio’s Restaurant”), and neither Seller nor any of its Subsidiaries has been served with, nor received any written notice threatening, any such lawsuit, litigation, arbitration, condemnation or other proceedings with regard to or which would materially adversely affect the Property.
(c) 3.1.6 Except as set forth on Schedule 3.1.6, neither Seller nor any Affiliate thereof has received no written notice and has no knowledge from any Governmental Authority declaring that, the Property and/or the Resort is in violation of any governmental assessments concerning applicable federal, state and local Laws, ordinances and regulations (including, without limitation, those regarding zoning, land use, building, fire, health, safety, environmental, subdivision, water quality, sanitation controls and the Property, which are unpaid.
(d) Seller has no knowledge Americans with Disabilities Act of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or1990, as of the Closing Date will be, the owner of fee simple, marketable title to the Propertyamended).
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)Seller covenants, Seller represents and warrants to Purchaser thatBuyer as follows, to wit:
(a) No Seller has the power and authority to own and convey the Property, and Seller's performance of Seller's obligations under this Agreement do not require the consent of any other person, firm. This Agreement and all documents executed by Seller which are to be delivered to Buyer are, or entity (except at the time of the Closing will be, duly authorized, executed, and delivered by Seller and do not, and at the time of the Closing will not, violate any provisions of any material agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. The Seller shall provide the Title Company with the documents as the Title Company may be set forth in request to evidence that Seller is duly authorized to enter into this Agreement and consummate the transaction contemplated hereunder and has all necessary power and/or other authority to enter into and consummate this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) This Agreement has been duly and validly executed and delivered by Seller has received no written notice and has no knowledge this Agreement constitutes the valid and legally binding obligation of any actual or threatened actionSeller, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertyenforceable against Seller in accordance with its terms.
(c) Seller has received no written notice and has no knowledge is a "United States person" within the meaning of any governmental assessments concerning the PropertyInternal Revenue Code of 1986, which are unpaidas amended.
(d) To the best of Seller's actual knowledge, without independent investigation, there is no "Hazardous Material" (as hereinafter defined) on, under or about the Property. Seller further warrants and represents that during the time in which Seller owned the Property, neither Seller nor, to the best of Seller's knowledge, any third party has no knowledge of and has received no written notice of any violation of lawused, municipal or county ordinances or codesgenerated, manufactured, produced, stored, or other legal requirements disposed of on, under, or about the Property or transported to or from the Property any Hazardous Materials. To Seller's knowledge, there is no proceeding or inquiry by any governmental authority with respect to the presence of Hazardous Materials on the Property or the migration of Hazardous Materials from or to the Property. To Seller's knowledge, there are no and have not been any storage tanks located in or under the Property. The term "Hazardous Material" means, but is not limited to, any substance, material, or waste which is toxic, ignitable, reactive, or corrosive; which is or can be injurious to the health, safety, or welfare of the public or environment, and which is or becomes regulated by any local or state governmental authority or the United States Government which term includes, without limitation, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance," "pollutant or contaminant," or "hazardous material," by any local or state law, (ii) oil and petroleum products and their by-products, (iii) asbestos or asbestos-containing materials, (iv) designated as a "hazardous substance" pursuant to the Federal Water Pollution Control Act, (v) defined as a "hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act, or (vi) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act. Seller has disclosed to Buyer in writing all information in Seller's possession or control which relates to the environmental condition of the Property. Prior to the Inspection Completion Date and any time during the term of this Agreement, Buyer shall have the right to make such studies and investigations as it deems appropriate to evaluate the Property and risks from any environmental or hazardous material and chemicals standpoint. To the extent the environmental studies show any hazardous materials affecting the Property or any violation of any governmental requirement pertaining to hazardous materials then either (i) Seller shall agree in writing to remediate any Hazardous Material on the Property in accordance with all applicable legal requirements prior to Closing, as such Closing Date may be extended by mutual written agreement of Seller and Buyer for such period of time as Seller and Buyer shall agree upon in writing, or (ii) the Buyer shall have the right to terminate this Agreement upon written notice to Seller on or prior to the Closing Date, whereupon this Agreement shall terminate and the parties released of all further obligations each to the other under this Agreement.
(e) The Property does not violate environmental laws applicable to it and Seller has not used There are no parties in possession of any portion of the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyother than Seller.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable simple title to the Property, subject only to the Permitted Exceptions.
(g) There are no actions, litigations, suits, special assessments, proceedings or investigations pending or to the best of Seller's knowledge, threatened affecting the Seller or the Property in law or in equity before any governmental department, commission, board, agency or instrumentality or any private individual or entity which involve the possibility of a judgment, liability or change in zoning against the Property.
(gh) None Between the Effective Date and Closing, the Seller will continue to operate and maintain the Property in its usual and customary manner and shall not take any action which would change in any material respect the existing condition of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full except as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged contemplated by Sellerthis Agreement.
(i) As of the Closing DateNo commitments have been made to any governmental authority, there will be no unpaid bills or liens for past due taxes or assessments of any natureutility company, for any pavingschool board, sidewalk, curbing, water, sewer, street improvements, other utilities church or other services provided for religious body or any homeowner's association or other organization, group or individual relating to the benefit Property which would impose an obligation on Buyer, its successors and assigns, to make any contribution or dedication of the Seller money or land or to construct, install or maintain any improvement of a public or private nature on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As Buyer has agreed to purchase the Assets as a result of Buyer’s review and inspection, and not because of or in reliance upon any representation made by the Seller or any principal or employee of Seller, or by any agent of the Effective Date (unless a different date is specified)Seller, Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be expressly set forth in this Agreement) , and that it has agreed to purchase the Assets in their present condition, unless otherwise specified herein. Notwithstanding the foregoing, Seller represents that, to the best of Seller’s knowledge, Seller is not in possession of any rights in or right information, and no information has come to acquire Seller’s attention that would cause Seller to conclude that: the Property Hotel, or any part thereof.
(b) Seller has received no written notice related facilities or utilities are not in conformance with applicable zoning, building codes or other laws and has no knowledge of regulations; the Hotel is not free from faulty materials and constructed according to sound engineering standards and constructed in a workmanlike manner; or there is any actual or threatened actionenvironmental contamination, litigationhazardous waste, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codesasbestos, or other legal requirements with respect to toxic substances, in the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage Hotel or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller upon which the Hotel is situated in any greater amount or for services of architectsdegree than indicated in the environmental studies provided to Buyer, surveyors or engineers engaged by Seller.
(i) As if any. Except to the extent available of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for existing title policy and the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, exceptenvironmental studies, if any, for those disclosed each of which has been or will be provided to Buyer, in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Selleraccordance with this Agreement, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge not undertaken any independent investigation or information verification of any factsthe matters described in this Paragraph. The Hotel and all furniture, circumstancesfixtures, equipment and appliances located in or other conditions, which do or would in any way adversely affect serving the Hotel and the Personal Property, or are being sold to Buyer “as is”; however, Seller represents that to the successful operation best of Seller’s knowledge, the roof and structure of the PropertyHotel are sound, except as specifically provided to Purchaser that all appliances, elevators, heating, air-conditioning, plumbing and other systems are now and will at Closing be in writing during the Feasibility Period. All of the representations good working order and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearcondition.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby represents and warrants to Purchaser thatBuyer the following:
(a) No personSeller has received no written notice that the location, firmoperation, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire use of the Property violates any applicable law, statute, ordinance, rule, regulation, order, or determination of any governmental authority, or any part thereofrestrictive covenant or deed restriction or zoning ordinance or classification affecting the Property, including, without limitation, all applicable health and environmental laws and regulations (hereinafter sometimes collectively called "Applicable Laws").
(b) Seller has not received no any written notice and has no knowledge of that the Property is currently subject to any actual existing or threatened action, litigation, rezoning, condemnation pending investigation or proceeding inquiry by any persongovernmental authority or to any remedial obligations under any Applicable Laws pertaining to health or the environment ("Environmental Laws"), entity nor to Seller's knowledge, is any such investigation or governmental agencyinquiry existing, which would affect the Propertypending, or threatened.
(c) There are no lease, use, or occupancy agreements by, through, or under Seller has received no written notice and has no knowledge affecting all or any portion of any governmental assessments concerning the Property, which and, other than Seller, there are unpaidno parties in possession of the Property, or any portion thereof.
(d) Seller is not a party to, and Seller has no knowledge of and has not received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements actual litigation that is pending with respect to the Property, nor to Seller's knowledge, is there any litigation that is pending or threatened with respect to the Property (including, without limitation, any condemnation or notice of condemnation) affecting or related to the Property.
(e) The Property does not violate environmental Seller is a duly formed and validly existing limited partnership under the laws applicable of the State of Delaware. Seller is authorized to it enter into this Agreement, and the undersigned signatory party for Seller has been duly authorized to consummate the transaction contemplated by this Agreement. This Agreement has been executed by each person or entity that has an ownership interest in the Property, and there is no requirement that any person or entity that has not used signed this Agreement grant any consent or take any other action in order to enable Seller to convey the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyas contemplated by this Agreement.
(f) There are no written agreements between Seller is or, as of and any other person for the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities sale or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development conveyance of the Property, except, if any, for those disclosed in writing and Seller has not granted to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information an option to purchase, right of any facts, circumstances, first refusal or other conditions, which do or would in any way adversely affect contractual right to acquire the Property, or the successful operation of the Propertyany part thereof, except as specifically provided to Purchaser in writing during the Feasibility Periodor any interest therein. All of the The foregoing representations and warranties of Seller shall be true and correct as of deemed to be repeated by Seller at the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for Closing. For a period of one (1) yearyear from and after Closing, Seller agrees to indemnify, defend, and hold Buyer harmless from and against, and to reimburse Buyer with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs, and expenses (including reasonable attorney's fees and court costs) of any and every kind or character, known or unknown, fixed or contingent, asserted against or incurred by Buyer at any time and from time to time by reason of or arising out of the breach of any representation or warranty of Seller set forth herein. The phrase "to Seller's knowledge" or words of similar import shall mean and refer to the actual, current knowledge of Jon Kennedy, without independent investigation or inquiry. XXXXX XXXNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CONVEYANCE OF THE PROPERTY SHALL BE SPECIFICALLY MADE "AS-IS" AND "WHERE-IS," WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (EXCEPT AS TO ANY EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND AS TO TITLE AS SET FORTH IN THE SPECIAL WARRANTY DEED), INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER. BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND CLOSING DOCUMENTS, NEITHER SELLER NOR ANY OF ITS AGENTS HAS MADE, AND THAT SELLER AND ITS AGENTS SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE CLOSING DOCUMENTS), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER NOT MADE IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE PROPERTY'S SUITABILITY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv) THE PROPERTY'S HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (v) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT NEITHER SELLER NOR ANY OF ITS AGENTS HAS MADE, AND THAT SELLER AND ITS AGENTS SPECIFICALLY NEGATE AND DISCLAIM (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE CLOSING DOCUMENTS), ANY REPRESENTATIONS OR WARRANTIES REGARDING THE PROPERTY'S COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS. BY EXECUTION OF THIS AGREEMENT, BUYER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY CONTAINED IN THIS AGREEMENT AND ANY INSTRUMENTS DELIVERED BY SELLER AT CLOSING, BUYER HAS RELIED AND SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, ITS AGENTS OR CONTRACTORS. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER (EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY INSTRUMENT DELIVERED BY SELLER AT CLOSING).
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatPurchaser, as follows:
6.1.1 Seller has (ai) No personthe right, firm, or entity (except as may be set forth in power and authority to enter into this Agreement, and (ii) has any rights in or right the right, power and authority to acquire convey the Property or any part thereofin accordance with the terms and conditions of this Agreement.
(b) 6.1.2 Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation pending action by any governmental authority or agency having the power of laweminent domain, municipal which might result in any part of the Property being taken by condemnation or county ordinances conveyed in lieu thereof. Seller shall, promptly upon receiving any such notice, give Purchaser written notice thereof.
6.1.3 Seller has received no written notice of any action, suit or codesproceeding pending or threatened in writing against, by or other legal requirements with respect affecting Seller’s right to transfer the Property or the title of the Property.
(e) The Property does not violate environmental laws applicable to it 6.1.4 To the best of Seller’s knowledge, the Rent Roll attached hereto as Exhibit “E” is true, correct and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, complete as of the Closing Date will be, the owner of fee simple, marketable title to the Propertydate set forth therein.
(g) None 6.1.5 Attached hereto as Exhibit “F” is a complete and accurate list of all service contracts, equipment leases, warranties and any other agreements which affect the use, operation or ownership of the lots are located in a flood plain area.
Property (h) No improvements the “Contracts”). Purchaser shall provide written notice to Seller, on or repairs have been made or will be made before the Inspection Date of any Contracts that it wishes to terminate at Closing. Seller shall terminate any existing management agreements for the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As 6.1.6 Seller has no knowledge and has not received written notice of violation of any applicable federal, state or local laws pertaining to environmental matters, building codes or other uses of the Closing Date, there will be Property.
6.1.7 Seller has no unpaid bills or liens for past due taxes or assessments knowledge of any natureEnvironmental Materials which exist on or about the Property, for or of any pavingconditions which exist which do or may cause a violation of any Environmental Laws or of any Hazardous Materials stored upon the Property.
6.1.8 EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SUBSECTION 6.1, sidewalkIT IS UNDERSTOOD AND AGREED THAT SELLER DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, curbingEXPRESS OR IMPLIED, waterWITH RESPECT TO THE PROPERTY, sewerINCLUDING, street improvementsBUT NOT LIMITED TO, other utilities WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN SELLER’S WARRANTY OF TITLE SET FORTH IN THE LIMITED WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OR ACCESS, INGRESS OR EGRESS, PROPERTY VALUE, OPERATING HISTORY, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SUBSECTION 6.1, PURCHASER AGREES THAT WITH RESPECT TO THE PROPERTY, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR SELLER’S AGENTS OR EMPLOYEES.
6.1.9 PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, SOPHISTICATED AND EXPERIENCED PURCHASER OF REAL ESTATE SIMILAR TO THE PROPERTY AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS, AND THAT PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME, AND, UPON CLOSING, ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 6, PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS,” WITH ALL FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. THE TERMS AND CONDITIONS OF PARAGRAPHS 6.1.7 THROUGH 6.1.8 (INCLUSIVE) SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT MERGE THEREIN.
6.1.10 Without limiting Paragraph 6.1.8 through 6.1.9 (inclusive), Purchaser acknowledges that, except as may otherwise be specifically set forth elsewhere in this Agreement, neither Seller nor its consultants, brokers or other services provided for the benefit of the Seller on the Property agents have made any representations or warranties of any kind against upon which Purchaser is relying as to any matters concerning the Property or the Personal Property, including, but not limited to, the condition of the land or any improvements comprising the Property, other than those items which are prothe existence or non-rated in connection with Closing.
existence of “Hazardous Materials” (j) Seller has made no representations to as hereinafter defined), economic projections or market studies concerning the Property, any county development rights, taxes, bonds, covenants, conditions and restrictions affecting the Property, water or local authorities or any homeowners in the community regarding the type or style of the development water rights, topography, drainage, soil, subsoil of the Property, exceptthe utilities serving the Property or any zoning or building laws, if any, for those disclosed in writing to Purchaser during rules or regulations or “Environmental Laws” (hereinafter defined) affecting the Feasibility PeriodProperty. Seller makes no representation or warranty that the Property complies with Title III of the Americans with Disabilities Act or any fire code or building code.
6.1.11 Except for a breach of a representation or warranty contained in this Section 6, Purchaser, any affiliate, parent of Purchaser, all shareholders, employees, officers and directors of Purchaser or Purchaser’s affiliate or parent, and their respective successors and assigns (k“Purchaser Group”) All labor performed and materials supplied for the Property have been fully paid by hereby covenant not to xxx Seller, and any person for such labor or materials may claim no mechanic's lien its general partners, or any other lien.
(l) Affiliate of Seller has no knowledge or information Seller’s general partners for, and shall not enforce any liability or obligation of Seller, its general partners or Affiliates of Seller or Seller’s general partners for, and hereby agree not to bring, assert or maintain any factsaction or claim for contribution, circumstancescost recovery or otherwise, including for injunctive relief, relating directly or indirectly to the violation of Environmental Laws regarding the existence of asbestos or Hazardous Materials on, or other conditionsenvironmental conditions of, which do or would in any way adversely affect the Property, whether known or unknown, by any action or proceeding wherein a money or other personal judgment, including injunctive relief, is sought by Purchaser Group against Seller, its general partners or Affiliates of Seller or Seller’s general partners; provided, however, that Purchaser Group and their successors or assigns may bring any action or proceeding to enforce and realize rights and claims under such Environmental Laws for contribution, cost recovery or otherwise against third parties, including but not limited to Sellers’ predecessors’ in title to the successful operation Property and name Seller and Seller’s Affiliates in such action or proceeding to the extent they, or any of them, are necessary parties to such action or proceeding; further provided, however, that any judgment in any such action or proceeding in favor of Purchaser Group or their successors or assigns shall not be enforced by Purchaser Group or any such successor or assign against Seller, its general partners or Seller’s Affiliates or Seller’s general partners.
6.1.12 As used herein “Environmental Laws” means all federal, state and local statutes, codes, regulations, rules, ordinances, orders, standards, permits, licenses, policies and requirements (including consent decrees, judicial decisions and administrative orders) relating to the protection, preservation, remediation or conservation of the Propertyenvironment or worker health or safety, except all as specifically provided to Purchaser in writing during amended or reauthorized, or as hereafter amended or reauthorized, including without limitation, the Feasibility PeriodComprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., the Resource Conservation Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6901, et seq., the Emergency Planning and Community Right-to-Know Act (“Right-to-Know Act”), 42 U.S.C. § 11001, et seq., the Clean Air Act (“CAA”), 42 U.S.C. § 7401, et seq., the Federal Water Pollution Control Act (“Clean Water Act”), 33 U.S.C. § 1251, et seq., the Toxic Substances Control Act (“TSCA”), 15 U.S.C § 2601, et seq., the Safe Drinking Water Act (“Safe Drinking Water Act”), 42 U.S.C. § 300f, et seq., the Atomic Energy Act (“AEA”), 42 U.S.C. § 2011, et seq., the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 651, et seq., and the Hazardous Materials Transportation Act (the “Transportation Act”), 49 U.S.C. § 1802, et seq. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossAs used herein, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one “Hazardous Materials” means (1) year“hazardous substances,” as defined by CERCLA; (2) “hazardous wastes,” as defined by RCRA; (3) any radioactive material including, without limitation, any source, special nuclear or by-product material, as defined by AEA; (4) asbestos in any form or condition; (5) polychlorinated biphenyls; and (6) any other material, substance or waste to which liability or standards of conduct may be imposed under any Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund I)
Seller’s Representations and Warranties. As In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Effective Date (unless a different date is specified)Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(a) No personSeller is a limited liability company organized and in good standing under the laws of the State of Delaware. Seller has the legal right, firmpower and authority to enter into this Agreement and to consummate the transactions contemplated hereby, or entity (and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, except as may be otherwise expressly set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofherein.
(b) There is no agreement to which Seller is a party or to Seller’s Actual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code and regulations promulgated thereunder, which Seller shall so certify at Closing.
(d) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of from any governmental assessments concerning agency in the Propertylast 24 months that the Property or the current use and operation thereof violate any applicable federal, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of state or municipal law, municipal statute, code, ordinance, rule or county ordinances or codesregulation (including those relating to environmental matters), or other legal requirements except with respect to such violations as have been fully cured prior to the Propertydate hereof.
(e) The Property does not violate environmental laws applicable to it and To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not used the Property for the generation, storage or handling received written notice from any governmental agency of hazardous materials or contaminants and there has been no release of a hazardous substance on or from any currently pending condemnation proceedings relating to the Property.
(f) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller is or, as has not received service of process with respect to any litigation that has been filed against Seller that arises out of the Closing Date will beownership of the Property and would materially affect the Property or the use thereof, the owner of fee simple, marketable title or Seller’s ability to the Propertyperform hereunder.
(g) None Seller is not and is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, (ii) a “plan” within the meaning of Section 4975 of the lots are located in a flood plain areaInternal Revenue Code of 1986, as amended (the “Code”) or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, of any such employee benefit plan or plans.
(h) No improvements Seller has no employees, either at-will or repairs have been made or will be made to in the context of an employment contract with Seller, and any employees associated with the Property on behalf are employees of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller’s property manager.
(i) As Seller has not either filed or been the subject of any filing of a petition under the Federal Bankruptcy Law or any federal or state insolvency laws or laws for composition of indebtedness or for the reorganization of debtors. To Seller’s Actual Knowledge, Seller has not received written notice of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments existence of any natureattachments, for any pavingexecutions, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided assignments for the benefit of the Seller on the Property of any kind creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against the Property, other than those items which are pro-rated in connection with ClosingSeller.
(j) To Seller’s Actual Knowledge, neither Seller nor any of its respective affiliates or constituents, nor any of their respective brokers or other agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (a) conducting any business or engaging in any transaction or dealing with any person appearing on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) list of restrictions and prohibited persons (“Prohibited Person”) (which lists can be accessed at the following web address: xxxx://xxx.xxxxxxx.xxx/offices/enforcement/ofac/), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”; or (c) engaging in or conspiring to engage in any transaction that evades or avoids, or has made no representations the purpose of evading or avoiding, or attempting to violate, any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would prohibitions set forth in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall reU.S. anti-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearmoney laundering law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Seller’s Representations and Warranties. As of Seller hereby makes the Effective Date (unless a different date is specified), Seller represents following representations and warrants warranties to Purchaser thatBuyer:
(a) No personSeller is a municipal corporation, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire duly organized and validly existing under the Property or any part thereof.laws of the State of North Carolina;
(b) Subject to Section 3, Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding taken all action as required by any person, entity or governmental agency, which would affect applicable law in order to permit Seller to enter into the Property.transactions contemplated hereby;
(c) Subject to Section 3, Seller is authorized and empowered to enter into this Contract and perform all of its obligations under this Contract;
(d) Subject to Section 3, upon the signing and delivery of this Contract, it will be legally binding upon Seller in accordance with all of its provisions;
(e) No notice has received no written notice and has no knowledge been served on or delivered to Seller from any entity, governmental body, or individual claiming any violation of any governmental assessments concerning Environmental Laws with respect to the Property, which are unpaid.demanding payment or contribution for environmental clean-up costs, environmental damage or injury to natural resources, or asserting liability with respect to the same, except as disclosed by the Property Information. Copies of any such notices received by Seller with respect to the Property on or after the Effective Date shall be forwarded to Buyer within five (5) days of their receipt;
(df) Seller has no knowledge of and has received no written notice of any violation of lawmoratorium or other facts or circumstances which would prevent sanitary sewer, municipal or county ordinances or codeswater, electricity, or other legal requirements with respect telephone services to be extended to the Property.
(e) The boundaries of the Property does not violate environmental laws applicable in quantities and at pressures sufficient to it and Seller has not used allow development of the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.intended use;
(g) None There are no outstanding leases, tenancies or other rights of occupancy for any portion of the lots are located in a flood plain area.Property; and
(h) No improvements There is no litigation, governmental proceeding or repairs have been made investigation pending or will be made to expressly threatened in writing regarding the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date or, to Seller’s knowledge (without further investigation), which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs would have a material adverse effect on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations ’s ability to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Periodfulfill its obligations under this Contract. All of the such representations and warranties of Seller made herein shall be true at the time of execution of this Contract and the Effective Date as though such representations and warranties were made at such time. If any such representations and warranties cannot be certified as being true and correct as of the Closing Date Date, Buyer shall have the option of terminating this Contract and Seller shall re-certify receiving a return of the representations Xxxxxxx Money Deposit, or of waiving the requirement of such certification and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due proceeding to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearclose.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)material inducement to Purchaser to execute this Agreement and consummate this transaction, Seller represents and warrants to Purchaser thatas follows, all of which shall be true and correct in all material respects on the Closing Date:
(a) No Seller has the right, power, and authority to sell, transfer, and convey the Property to Purchaser pursuant to the terms and conditions of this Agreement; the person executing this Agreement on behalf of the Seller is duly authorized and empowered to act for and to bind the Seller and this Agreement constitutes the binding obligation of Seller and is enforceable in accordance with its terms;
(b) Except for the consent of Victory Park Management, LLC, Jay, Jean, Xxxxxx and/or Xxx Xxxx, which Seller has no reason to believe will not be given, the sale of the Property and the performance of Seller's obligations under this Agreement do not require the consent or approval of any person, firmentity or governmental authority;
(c) Seller is not subject to any decree or order of any court or regulatory body, and there are no lawsuits, prosecutions, investigations or other legal proceedings pending or, to the Seller's knowledge, threatened against Seller or the Property which could reasonably be expected to adversely affect the validity or enforceability of this Agreement or the ability of Seller to perform its obligations under this Agreement. Seller has not received any written notice from any governmental authority or other person alleging, and Seller has no knowledge of, any violation of any law or ordinance regulating use of the Property, including any Environmental Laws, which has not been cured by Seller to the satisfaction of the issuer;
(d) there are no proceedings pending, or to Seller's knowledge threatened, by or against Seller in bankruptcy, insolvency or reorganization in any State or federal court;
(e) Seller has not received any written notice of any pending or threatened condemnation or eminent domain proceedings which could reasonably be expected to affect the Property;
(f) Seller has not received any written notice of any assessment for public improvements for the Property, including but not limited to those for construction of sewer, water, gas and electric lines and mains, street, roads, sidewalks, and curbs, which assessments remain unpaid, in whole or in part;
(g) Seller is not and is not acting on behalf of (i) an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (ii) a "plan" within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. §2510.3-101 of any such employee benefit plan or plans.
(h) As of the date of this Agreement, except as may be set forth on Exhibit F, Seller has not entered into any Service Contracts affecting the Property;
(i) Except as set forth on Exhibit F, and to the best of Seller's knowledge, no party is in default under any of the Service Contracts;
(j) As of the date of this Agreement, the only occupant of the Property is Seller. There are no oral or written leases, occupancy agreements or similar agreements giving any person or entity any rights to use, occupy or operate on the Property or any portion thereof;
(k) As of the Effective Date, Seller has not received any written notice from any governmental authority with respect to the violation of any law or ordinance regulating use of the Property, including those dealing the environment, which has not been cured by Seller, and Seller has no knowledge of any such uncured violation of law or ordinance; and
(l) No person or entity, including without limitation any Tenant, has any rights in right of first refusal, right of first offer or right other option to acquire the Property or any part thereofthereof or interest therein.
(bm) Seller has received no written notice is the sole owner of fee title to the Property and has no knowledge not derived title from any proceedings or any act for the sale of any actual land for the non-payment of municipal taxes or threatened action, litigation, rezoning, condemnation assessments or proceeding by any person, entity adverse or governmental agency, which would affect the Propertycolor of title possession.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(en) The Property is presently zoned for industrial use and the Seller's current use of the Property does not violate environmental any existing zoning laws applicable to it of the Township of Fairfield.
(o) There are no tax appeals pending regarding the Property and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyplans to file any such tax appeals prior to Closing.
(fp) Seller is orwill not create nor voluntarily suffer or permit any lien, as encumbrance, restriction or agreement to be placed against the Property which cannot be fully discharged at Closing through the application of the Closing Date will bemonies payable hereunder to Seller at Closing.
(q) There do not exist any underground storage tanks in, on or under the Property that require registration under and pursuant to the New Jersey Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21 et. seq. and the regulations promulgated thereunder ("USHSA") except as set forth below:
(r) To the best of Seller's knowledge, the owner of fee simpleProperty has never been used to generate, marketable manufacture, refine, produce, store, handle, transfer, process or transport any hazardous materials other than in compliance with all applicable environmental laws prior to the date the Seller acquired title to the Property, (ii) the Property is not currently, and has not during the period of the Seller's ownership been used to generate, manufacture, refine, produce, store for use or distribution, handle, transfer, process or transport any hazardous materials other than in compliance with all applicable environmental laws.
(gs) None There is no action, suit or proceeding pending or, to the best of Seller's knowledge, threatened against or affecting Seller in any court, or by or before any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which (i) individually or in the lots are located aggregate, would materially and adversely affect the financial position, business or operations of Seller, taken as a whole, or the performance by Seller of its obligations hereunder or (ii) would affect in a flood plain areaany material respect the consummation or validity of this Agreement or the transactions contemplated hereby.
(ht) No improvements Seller is not in default (i) in the payment of any taxes levied or repairs assessed against it or its assets (including the Property), or (ii) under any statute, rule, order, decree, writ, injunction or regulation of any governmental body (including any court), in either case which would have been made or will be made a material adverse effect on its ability to perform the obligations contemplated by this Agreement.
(u) Neither this Agreement nor the conveyance of the Property on behalf or the personal property included in this transaction (the "Personal Property") to Purchaser will defraud any of Seller's creditors, or render Seller insolvent.
(v) Seller has not, does not intend to and shall not incur debts and obligations that are beyond its ability to pay as they become due.
(w) Seller has not filed any voluntary petition in bankruptcy or been adjudicated a bankrupt or insolvent, or filed any petition or answer seeking any reorganization, liquidation, dissolution or similar relief under any federal bankruptcy or insolvency laws, or other relief for debtors, or sought or consented to or acquiesced in the Seller during appointment of any trustee, receiver, conservator or liquidator of all or any substantial part of its assets or its interest in the 90 days immediately preceding Property or the Closing Date which will not be paid for in full as personal property. No court of the Closing Datecompetent jurisdiction has entered an order, judgment, or decree approving a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any federal bankruptcy act, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf liquidator of Seller or for services of architects, surveyors all or engineers engaged by Seller.
(i) As any substantial part of the Closing Date, there will be no unpaid bills its assets or liens for past due taxes its assets or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on its interest in the Property or the personal property has been appointed. Seller has not given notice to any governmental body of insolvency or pending insolvency, or suspension or pending suspension of operations. The foregoing representations and warranties and any kind against the Property, other than those items which are pro-rated representations made by Seller in this Agreement or any other document executed in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity proposed transaction shall survive the Closing for a period of one six (16) yearmonths. Any reference to the "knowledge" of Seller shall refer only to the current, actual knowledge on or before the Closing Date of Xxxx Xxxxxxx, who is the Vice President, Manufacturing Operations, of Seller and is the person with the most knowledge concerning the Property, and shall not impose upon him any duty to investigate the matters to which such actual knowledge pertains. To the extent that Purchaser knows or is deemed to know prior to the expiration of Purchaser's Due Diligence Period that Seller's representations and warranties are inaccurate, untrue or incorrect, such representations and warranties shall be deemed modified to reflect Purchaser's knowledge or deemed knowledge, as the case may be. For purposes of this Agreement, the phrase "deemed to know" shall have the following meaning: (i) Purchaser shall be "deemed to know" of the existence of a fact or circumstance to the extent that such fact or circumstance is expressly disclosed by this Agreement, any documentation delivered to Purchaser by Seller or any studies, tests, reports or analyses prepared by or for or otherwise obtained by Purchaser or Purchaser's representatives; and (ii) Purchaser shall be "deemed to know" that a representation or warranty is untrue, inaccurate or incorrect to the extent that this Agreement, the documents supplied by Seller to Purchaser or any of Purchaser's representatives, or any studies, tests, reports or analyses prepared by or for or otherwise obtained by Purchaser or Purchaser's representatives contains express information which is inconsistent with such representation or warranty.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller represents and warrants to Purchaser that:
(ai) No personSeller has the full right, firmpower, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or entity provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(except as may be set forth in this Agreementiii) has any rights in there is no existing or right pending (or to acquire Seller’s knowledge threatened) litigation affecting Seller or the Property, other than claims that Seller intends to file against the former management company for the Property and certain individuals relating to improper reimbursement of expenses (the “Management Dispute”), and Seller hereby agrees to indemnify, defend and hold harmless Purchaser from and against any and all claims, causes of action, loss, cost or any part thereofexpense incurred by Purchaser in connection with the Management Dispute, which indemnification obligation expressly shall survive Closing.
(biv) Seller has no knowledge of, and has not received no any written notice and has no knowledge of of, any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge violation of any governmental assessments requirements (including “Environmental Requirements”, as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements other than an extension until December 31, 2014 from the Town of Cary, North Carolina, to complete certain improvements required by a special use permit pertaining to Parcel One,
(evi) The Property does not violate environmental laws applicable to it the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and Seller has not used complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property for the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a “foreign person” within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will beProperty under written leases for space in the Property, as shown on the rent rolls attached hereto as Exhibit “F” (collectively, the owner “Rent Rolls”), there are no parties in possession of, or claiming any possession to, any portion of fee simple, marketable title to the Property.,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Rolls (which are effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, are and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Rolls,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects, and, to the best of Seller’s knowledge, all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof are true, correct and complete in all material respects.
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Property, other than those items which are pro-rated in connection with Closing.,
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(lxv) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other conditions, which do or would in any way adversely affect the Property, or the successful operation portions of the Property, except and to the best of Seller’s knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvi) to the best of Seller’s knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xvii) to the best of Seller’s knowledge, there are no underground storage tanks located on or under the Property, there are no conditions on, at or relating to the Property which are in non-compliance with “Environmental Requirements” (as specifically provided defined below), and there are no “Hazardous Materials” (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xviii) Seller has obtained all necessary certificates, licenses and other approvals, governmental and otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which are in full force and effect as of the date hereof and not subject to revocation, suspension, forfeiture or modification; and additionally, the Property is legally compliant with all applicable zoning laws, rules and regulations, other than the special use permit requirements pertaining to the property located at 140 and 000 Xxxxxxx Xxxxxxxxx, Xxxx, Xxxxx, Xxxxxxxx, (xix) attached hereto as Schedule “F” and incorporated herein by reference, is a true, correct and complete list of all of the Loan Documents, and
(xx) there are no defaults under the Loan Documents, nor have any events occurred which with the passage of time or the giving of notice or both would constitute a default under the Loan Documents.
(xxi) the present unpaid principal balance of the Loan is $12,761,608.10, the Loan currently accrues interest at the rate of 5.73% per annum, and the Lender is currently holding escrows and/or reserves under the Loan in the following amounts: Tax Escrow account with a current balance of $87,423.48, Property Insurance Escrow account with a current balance of negative $35,678.54, Reserve Escrow account with a current balance of $134,369.22, and Suspense account with a current balance of zero. Seller shall deliver a certificate to Purchaser in writing during at Closing updating and recertifying all of the Feasibility Periodforegoing representations and warranties to Purchaser as of the Closing Date. All of the foregoing representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity expressly shall survive the Closing for a period of one (1) year. If any of the foregoing representations and warranties is incorrect as of the Closing Date, however, and Seller cannot update and recertify any of the foregoing representations and warranties, then notwithstanding anything in this Agreement to the contrary, Purchaser’s sole and exclusive remedy shall be to either (i) terminate this Agreement upon written notice to Seller, in which event the Xxxxxxx Money shall be returned by Escrow Agent to Purchaser, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which might be provided by Seller, and neither party shall have any further obligations hereunder except for the Surviving Obligations, or (ii) waive the incorrect representation(s) and warranty(s) and the recertification of such representation and warranty, in which event the parties shall proceed to Closing; provided, however, that in the event Seller is unable to update and recertify any representation or warranty as a result of the acts or omissions of Seller, its agents, contractors or employees, then Purchaser shall have the right to xxx Seller for Purchaser’s actual damages. Any representations or warranties made herein to Seller’s “knowledge” or to the best of Seller’s “knowledge” shall be based only upon the knowledge of Seller and without any investigation, which knowledge shall be deemed to consist only of the knowledge of Xxxxx X. Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxxxx, and Xxxxx Xxxxx (“Seller’s Notice Persons”). Seller represents and warrants that Xxxxxxx Xxxxxxxxxxx is familiar with the day to day operation of the portion of the Property located in North Carolina and that Xxxxx Xxxxx is familiar with the day to day operation of the portion of the Property located in South Carolina. As used in this Agreement, the term “knowledge” shall mean only that nothing is known by or has come to the attention of any of Seller’s Notice Persons that is inconsistent with any of the representations or warranties, and “notice” received by Seller shall be limited to notice (written or oral) received by Seller or either of Seller’s Principals.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, ambient air, surface water, ground water or land or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust II, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
Buyer, in addition to all warranties implied by law, that each item of merchandise or services described on the face hereof, together with all related packaging and labeling and other material or work furnished by Seller, shall (a) No personbe free from defects in design, firmworkmanship or materials including, without limitation, such defects as could create a hazard to life or entity property or defect in Seller's or Buyer’s work; (except b) conform in all respects with all applicable federal, state and local laws, orders and regulations, including, but not limited to, those regarding occupational safety and health and wage and hour laws; (c) not infringe or encroach upon Xxxxx's or any third party's personal, contractual or proprietary rights, including patents, trademarks, copyrights, rights of privacy or trade secrets; and (d) conform to all of Buyer's specifications and to all articles shown to Buyer as may be samples of Seller’s as merchandise or services. All warranties set forth in this Agreement) has Section 8 or in any other part of Buyer's Purchase Orders (including warranties incorporated herein by reference), or which law implies, shall survive any inspection, delivery, acceptance or payment by Buyer. Such warranties shall be in addition to Xxxxx’s other rights in and remedies, and shall not be construed as a limitation on Buyer’s claims or rights, including the right to acquire enforce the Property or any part thereof.
(b) Purchase Order against Seller has received no written notice and has no knowledge for the applicable statutes of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect limitation. Subject to the Property.
(e) The Property does not violate environmental laws applicable to it foregoing, Seller warrants all goods and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of eighteen (18) months, from the date of delivery or one (1) yearyear from the Owner’s beneficial use, or completion of Seller’s performance under the Purchase Order, whichever is greater. In the event of a warranty claim, Seller shall promptly remove and replace any defective or nonconforming merchandise or services at Seller’s sole cost and expense. Seller also shall be responsible for the cost of correcting the goods and work and property of Buyer or others damaged by Seller’s defective merchandise or services, including goods and work of Buyer and others that are damaged by Seller in connection with Seller’s performance of warranty work.
Appears in 1 contract
Samples: Terms and Conditions of Purchase
Seller’s Representations and Warranties. As Seller hereby represents, warrants, and/or covenants to Purchaser the following matters are true and correct as of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatDate:
(a) No personSeller is a body politic and corporate duly organized, firm, or entity (except as may be set forth validly existing and in this Agreement) has any rights in or right to acquire good standing under the Property or any part thereoflaws of the State of Florida.
(b) The execution, delivery and performance by Seller of this Agreement is within the authority of Seller, has been authorized by all necessary proceedings and do not and will not contravene any provision of law, organizational papers or any amendments thereof or any written agreement or contract to which Seller is a party.
(c) The person signing this Agreement on behalf of Seller is authorized to do so. Upon execution and delivery of the Agreement by Seller, this Agreement will be a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
(d) Seller has received no written notice and has no knowledge of any actual condemnations, suits, claims, causes of actions or moratoria or any other proceedings pending or threatened actionagainst Property (or Seller with respect to the Property) before any court or other governmental, litigationadministrative, rezoningregulatory, condemnation adjudicatory, or arbitrational body of any kind, with the exception of any matters related to the environmental condition of the Property. If Seller is served with process or receives notice that litigation or legal proceeding by may be commenced with respect to the Property (or Seller with respect to the Property), Seller shall promptly notify Purchaser of such matters.
(f) Within ten (10) days after the Effective Date of this Agreement, Seller will deliver to Purchaser true, correct and complete copies of all agreements pertaining to the use, operation of maintenance of the Property (the “Service Contracts”).
(g) Seller has not granted to any person, person or entity any option or governmental agency, which would affect other right to lease or purchase to the Property and no person or entity has any option or other right to lease or purchase the Property.
(ch) To Seller's actual knowledge, Seller has not received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation proceedings pending or threatened to terminate or suspend the BSRA or that certain Significant Industrial User Discharge Permit #146, dated January 17, 2012 (the “Discharge Permit”), and Seller agrees to provide copies of law, municipal any existing permits for the Property in Seller’s possession and of which Seller’s real estate department representative has actual knowledge.
(i) To Seller’s actual knowledge: (i) the Land has been operated in compliance with the BSRA and the Discharge Permit; and (ii) Seller has not received any written notice or county ordinances or codes, or other legal requirements citation for noncompliance with respect to the Property.
(e) The Property does not violate environmental laws applicable BSRA or the Discharge Permit. Upon the request of Purchaser, at Closing Seller shall deliver to it Purchaser a “Seller's Representation Certificate” certifying that all representations and warranties of Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants in this Section 5.1 remain true and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full correct as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All all of the representations and warranties of Seller contained herein shall be true and correct deemed to be remade by Seller effective as of the Closing Date; provided, however, that to the extent that changes in facts or circumstances after the Effective Date and have occurred, Seller shall re-certify deliver written notice to Purchaser of such facts or circumstances within ten (10) days after becoming aware of same, and the Seller's Representation Certificate may be revised at Closing to make exception or qualification with respect to such matters as may be necessary for such representations to remain true, but Purchaser may (i) terminate this Agreement and warranties on receive the Closing Date Xxxxxxx Money if such change in facts and shall indemnify circumstances giving rise to changes to Seller's Representation Certificate materially and hold harmless adversely affect the other party for any and all lossProperty or Purchaser’s proposed development thereof, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for (ii) assert a period Seller default under this Agreement if such change of one (1) yearfacts or circumstances arises from a default by Seller under this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of For the Effective Date (unless a different date is specified)Property, Seller represents and warrants as of this date and to Purchaser the best of Seller's actual knowledge that:
(a) No person, firm, or entity (except as may be set forth in A. Except for this Agreement) has any rights in or right to acquire , and the Property or any part thereof.
(b) Lease between Seller has received no written notice and has no knowledge Hollywood Entertainment Corporation, it is not aware of any actual other agreements or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements leases in existence with respect to the Property.
B. Seller has all requisite power and authority to consummate the transaction contemplated by this Agreement and has, by proper proceedings, duly authorized the execution and delivery of this Agreement and the consummation of the transaction contemplated hereunder. C. Seller does not have any actions or proceedings pending which would materially affect the Property or Lessee, except matters fully covered by insurance.
D. The consummation of the transaction contemplated hereunder, and the performance of this Agreement and the delivery of the special warranty deed to Buyer, will not result in any breach of, or constitute a default under, any instrument to which Seller is a party or by which Seller may be bound or affected.
E. All of Seller's covenants, agreements, representations and warranties made herein, and in any and all documents which may be delivered pursuant hereto, shall survive the delivery to Buyer of the special warranty deed and other documents furnished in accordance with this Agreement for a period of one (e1) year and this provision hereof shall continue to inure to Buyer's benefit and its successors and assigns.
F. The Property does not violate environmental laws applicable to it is in good condition, substantially undamaged by fire and Seller other hazards, and has not used been made the Property for the generation, storage or handling subject of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyany condemnation proceeding.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, G. The use and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the PropertyProperty is currently in full compliance with applicable local, except as specifically provided to Purchaser in writing during the Feasibility Periodstate and federal laws, ordinances, regulations and requirements. All of the H. These Seller's representations and warranties of Seller shall are deemed to be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing closing for a period of one (1) year. I. To Seller's best knowledge, the Property is not in violation of any federal, state or local law, ordinance or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions. To Seller's actual knowledge, there is no proceeding or inquiry by any governmental authority with respect to the presence of hazardous materials on the Property or the migration of hazardous materials from or to other property. Seller has not caused or permitted the Property to be in violation of any federal, state or local law, ordinance or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions. J. The transaction contemplated herein does not represent a fraudulent conveyance by Seller.
Appears in 1 contract
Samples: Purchase Agreement (Aei Income & Growth Fund Xxii LTD Partnership)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), A. Seller represents and warrants to Purchaser thatPHM as to each Loan offered for sale under this Agreement that as of the date PHM purchases such Loans:
(1) The promissory note, mortgage, deed of trust and/or deed to secure debt and any and all other documents executed and delivered by any trustor/mortgagor/borrower (“Borrower”) in connection with a Loan (collectively, the “Loan Documents”) are genuine, and each is the legal, valid and binding obligation of the maker thereof enforceable in accordance with its terms. All parties to the Loan Documents had legal capacity to enter into the Loan and to execute and deliver the Loan Documents, the Loan Documents have been duly and properly executed by such parties, and there is no verbal understanding or written modification of the Loan Documents which would affect the terms of the Loan except by written instrument delivered and expressly made known to PHM. The documents, instruments and agreements submitted for loan underwriting were not falsified and contain no untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the information and statements therein not misleading. No fraud was committed in connection with the origination of the Loan.
(2) Seller is the sole owner of the Loan, has good marketable title thereto and has authority to sell, transfer and assign the same on the terms set forth herein and in the Guide free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest. There has been no assignment, sale or hypothecation thereof by Seller, except the usual hypothecation of the documents in connection with Seller’s normal banking transactions in the ordinary course of its business, and following the sale of the Loan to PHM hereunder, PHM will own such Loan free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest.
(3) If applicable, the full principal amount of the Loan has been advanced to the Borrower, either by payment directly to such person or by payment made on such person’s request or approval. The unpaid principal balance of the Loan is as represented by Seller. All costs, fees and expenses incurred in making, closing and recording the Loan have been paid. No part of the property serving as collateral for the Loan (the “Mortgaged Property”) has been released from the lien of the Loan, the terms of the Loan have in no way been changed or modified, and the Loan is current and not in default. The Loan has been closed and the proceeds of the Loan have been disbursed according to its terms.
(4) Each Loan is secured by a valid first lien and the Mortgaged Property is free and clear of
(a) No personall encumbrances and liens having priority over the lien of such Loan, firmexcept for the first lien, or entity if applicable, (except as may be b) liens for real estate taxes and special assessments not yet due and payable, and (c) those exceptions allowed in connection with government loans and other exceptions set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofGuide.
(5) The Mortgaged Property is free and clear of all mechanics’ liens, material men’s liens and all other liens in the nature thereof, and no rights are outstanding that under law could give rise to any such lien, nor is Seller aware of any facts which could give rise to any such lien.
(6) For each Loan which Seller represents to be insured or has guaranteed will be insured, Seller will have, within 15 days from the date of delivery of such Loan to PHM, satisfactorily completed its submission of the loan file package to the mortgage insurance company or agency insuring or guaranteeing said Loan. Further, no action has been taken or failed to have been taken which has resulted or will result in an exclusion from, denial of, or defense to, coverage under such insurance or guarantee; and all conditions within the control of Seller as to the validity of the insurance or guaranty as required by the National Housing Act of 1934 and the rules and regulations thereunder, or as required by the Servicemen’s Readjustment Act of 1944 and the rules and regulations thereunder, or imposed by the mortgage insurance companies or other insurers have been properly satisfied, and said insurance or guaranty is valid and enforceable.
(7) All federal and state laws, rules and regulations applicable to the Loans have been complied with, including but not limited to: the Real Estate Settlement Procedures Act, the Appraisal Independence Rules, the Flood Disaster Protection Act, the Federal Consumer Credit Protection Act including the Truth-in-Lending and Equal Credit Opportunity Acts, and all applicable statues or regulations governing fraud, lack of consideration, unconscionability, consumer credit transactions, predatory and abusive lending or interest charges. All points, fees and charges (including finance charges), whether or not financed, assessed, collected or to be collected in connection with the origination of each Loan have been disclosed in writing to the Borrower in accordance with applicable state and federal law and regulation.
(8) No loans submitted by Seller to PHM violate any provisions of the loan originator compensation and anti-steering rules effective April 1, 2011. PHM may, but is under no obligation to, review or verify any information with respect to Seller or any loan documents submitted to PHM by Seller, including, without limitation, Seller’s compliance with federal or state law. PHM’s right to indemnification or other rights and remedies set forth herein will not be affected by any verification, investigation, audit or review conducted by PHM, or any knowledge acquired (or capable of being acquired) at any time, with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant or obligation of Seller herein. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification or other rights and remedies based on such representations, warranties, covenants and obligations.
(9) No Loan is the subject of, and Seller is not aware of any facts which could give rise to, litigation which could affect PHM’s ability to enforce the terms of the obligation or its rights under the Loan Documents.
(10) There is in force for each Loan either (a) a paid-up title insurance policy on the Loan issued by a PHM approved title company in an amount at least equal to the outstanding principal balance of the Loan or (b) an attorney’s mortgage lien opinion. Any additional insurance coverage required for negatively amortizing Loans has been obtained.
(11) There is in force for each Loan valid hazard insurance policy coverage and, where applicable, valid flood insurance policy coverage, and such coverage meet the requirements of PHM specified in the Guide.
(12) Seller files or causes to be filed an individual assignment of the Loan registered on the Mortgage Electronic Registration System (“MERS”), notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to give record notice of the sale of the Loan to PHM.
(13) The borrower has no rights of rescission, set-offs, counter-claims or defenses to the note or deed of trust/mortgage securing the note arising from the acts and/or omissions of Seller.
(14) Seller has received no written notice and has no knowledge that any improvement located on or being part of the Mortgaged Property is in violation of any actual applicable hazardous substance, zoning law or threatened actionregulation.
(15) All improvements included for the purpose of determining the appraised value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect and no improvements on adjoining properties encroach upon the Mortgaged Property.
(c16) Seller has received There is no written notice and has no knowledge proceeding pending for total or partial condemnation of any governmental assessments concerning the PropertyMortgaged Property and said property is free of substantial damage (including, which are unpaidbut not limited to, any damage by fire, earthquake, windstorm, vandalism or other casualty) and in good repair.
(d17) Seller has no knowledge of any circumstances or conditions with respect to any Loan, Mortgaged Property, Borrower or Borrower’s credit standing that reasonably could be expected to cause private institutional investors to regard any Loan as an unacceptable investment, cause any Loan to become delinquent or adversely affect the value of marketability of the Loan.
(18) All documents submitted in connection with the Loan are genuine and has contain genuine signatures. Each document that PHM requires to be an original document is an original document. All certified copies of original documents are true copies and meet the applicable requirements and specifications of this Agreement and the Guide. All other representations as to each such Loan are true and correct and meet the requirements and specifications of all parts of this Agreement and the Guide.
(19) The consideration received no written notice by the Seller upon the sale of any violation Loan under this Agreement constitutes fair consideration and reasonably equivalent value for the Loan.
(20) The Seller has complied with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of law2003, municipal or county ordinances or codesand the laws and regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or other legal requirements which prohibit dealings with certain countries, territories, entities and individuals named in OFAC’s Sanction Programs and on Specially Designated Nationals and Blocked Persons List (collectively, the “Anti-Money Laundering Laws”). The Seller has established an anti-money laundering compliance program to the extent required by the Anti-Money Laundering Laws, has conducted the requisite due diligence in connection with the origination of each Loan for purposes of the Anti-Money Laundering Laws, including with respect to the Propertylegitimacy of the applicable Borrower and the origin of the assets used by said Borrower to purchase the property in question, and maintains, and will maintain sufficient information to identify the applicable Borrower for purposes of the Anti-Money Laundering Laws.
(e21) The Property does Borrower has not violate environmental laws applicable to it notified the Seller, and the Seller has not used no knowledge of any relief requested or allowed to a Borrower under the Service members’ Relief Act or any other federal or state law that would have the effect of suspending or reducing the Borrower’s payment obligation under a Loan or that would prevent or restrict the ability of PHM to commence or continue with foreclosure of the Mortgaged Property for securing a Loan or any other remedies available under the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the PropertyLoan Documents.
(f22) Seller No Loan is or, as subject to the requirements of the Closing Date will beHome Ownership and Equity Protection Act of 1994. No Loan is classified as a “high cost,” “threshold,” “covered,” “abusive” or “predatory” loan or a similar loan under any applicable state, the owner of fee simplefederal or local law (or similar classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, marketable title to the Propertypoints and/or fees.
(g23) None No Borrower was encouraged or required to select a loan product offered by Seller which is a higher cost product designed for less creditworthy borrowers, unless at the time of the lots are located in Loan’s origination, such Borrower did not qualify taking into account credit history and debt to income ratios for a flood plain area.
(h) No improvements or repairs have been made or will be made to lower cost credit product then offered by the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(24) No Mortgaged Property securing a Loan (i) As is in a zip code declared by the Federal Emergency Management Agency (“FEMA”) as being an “Individual Assistance” property or “Category 1” property (or such similar term(s) or classification(s) that may be used by FEMA from time to time).
B. Seller represents and warrants to PHM that as of the Closing Datedate first set forth above and as of the date PHM’s purchase of each Loan hereunder:
(1) Seller is duly organized, there validly existing and in good standing under the laws of its state of formation and is qualified and/or licensed as necessary to transact business, including the originating and selling of mortgage loans, and is in good standing in each state where the property securing a Loan is located.
(2) Seller has the full power and authority to hold and sell each Loan; and neither the execution and delivery of this Agreement, nor the acquisition or origination of the Loans, nor the sale of the Loans, nor the consummation of the transactions contemplated herein, nor the fulfillment of or compliance with the terms and conditions of this Agreement will be no unpaid bills conflict with, or liens for past due taxes or assessments result in a breach of any natureterm, condition or provision of Seller’s applicable articles of incorporation, by-laws, articles of organization, operating agreement, certificate of partnership or partnership agreement, or any license held by Seller or governing Seller’s activities or any agreement to which Seller is a party or by which Seller is bound, or constitute a material default or result in an acceleration under any of the foregoing.
(3) No consent, approval, authorization or order of any court, government body or any other person or entity is required for execution, delivery and performance by Seller of this Agreement, including but not limited to, the sale of the Loans to PHM.
(4) Neither Seller nor its agents know of any pavingsuit, sidewalkaction, curbing, water, sewer, street improvements, other utilities arbitration or legal or administrative or other services provided for the benefit of the proceeding pending or threatened against Seller on the Property which would affect its ability to perform its obligations under this Agreement.
(5) Seller is not a party to, bound by or in breach or violation of any kind against agreement of instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects, or may in the Propertyfuture materially and adversely affect the ability of Seller to perform its obligations under this Agreement or the Guide.
(6) The Seller has not dealt with any agent, person or other than those items which are pro-rated entity that may be entitled to any commission or compensation in connection with Closingthe sale of any Loan to PHM pursuant to the terms of this Agreement.
(j7) Neither this Agreement nor any statement, report or other document furnished or to be furnished by Seller has made no representations pursuant to this Agreement or in connection with the transactions contemplated hereby contains any county untrue statement of fact or local authorities or any homeowners in omits to state a fact necessary to make the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Periodstatements contained therein not misleading.
(k) All labor performed and materials supplied for 8) The consummation of the Property have been fully paid transactions contemplated by this Agreement are in the ordinary course of business of Seller, and any person for such labor or materials may claim no mechanic's lien the transfer, assignment and conveyance of the Loans pursuant to this Agreement are not subject to bulk transfer or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would similar statutory provisions in effect in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearapplicable jurisdiction.
Appears in 1 contract
Samples: Loan Purchase Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received the full right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller's assets is bound,
(iii) there is no written notice and existing or pending (or to Seller's knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no knowledge of of, and has not received any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of, any violation of any governmental assessments requirements (including "Environmental Requirements", as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(evi) The Property does not violate environmental laws applicable to it the list of contracts attached hereto as Exhibit "E" (the "Contracts"), is a true, correct and Seller has not used complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property for the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will be, the owner of fee simple, marketable title to Property under written leases for space in the Property., as shown on the rent roll attached hereto as Exhibit "F" (the "Rent Roll"), there are no parties in possession of, or claiming any possession to, any portion of the Property,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Roll,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, and all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects,
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Property, other than those items which are pro-rated in connection with Closing.,
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(lxv) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and to the best of Seller's knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvi) to the best of Seller's knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xvii) to the best of Seller's knowledge, there are no underground storage tanks located on or under the Property, there are no conditions on, at or relating to the Property which are in non-compliance with "Environmental Requirements" (as defined below), and there are no "Hazardous Materials" (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xviii) the parties comprising Seller own the properties comprising the Property in the manner set forth on Exhibit "H" attached hereto and made a part hereof, and
(xix) Seller does not have a Sales and Use Tax Permit with respect to all or any portion of the Property. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, "Hazardous Materials" shall mean any substance which is or contains (i) any "hazardous substance" as now or hereafter defined in Section101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section9601 et seq.) ("CERCLA") or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C. Section6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. Section2601 et seq.); (iv) gasoline, diesel fuel, or other conditionspetroleum hydrocarbons; (v) asbestos and asbestos containing materials, which do or would in any way adversely affect form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any "source material", "special nuclear material" or "byproduct material", as now or hereafter defined in 42 U.S.C. Section2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under "Environmental Requirements" (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, "Environmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the successful operation use of the Property, except as specifically provided relating to Purchaser in writing during pollution, the Feasibility Period. All protection or regulation of human health, natural resources, or the representations and warranties environment, or the emission, discharge, release or threatened release of Seller shall be true and correct as of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossenvironment (including, damageswithout limitation, costs ambient air, surface water, ground water or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearland or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Seller’s Representations and Warranties. As a material inducement to Purchaser, Seller warrants to Purchaser that, as of the Effective Date (unless a different date is specified)and as of the Closing Date, Seller represents and warrants to Purchaser thatsuch warranties shall survive the Closing Date without further certification:
(a) No personThere are no actions, firmsuits, or entity (except as may be set forth in proceedings pending, or, to the knowledge of Seller, threatened, against Seller or the Property, or involving the validity or enforceability of this Agreement) has any rights in , including, without limitation, petitions under the Bankruptcy Act of 1978 or right to acquire other petitions for reorganization or for debtor relief or for the Property or any part thereofappointment of a receiver.
(b) The execution and delivery of this Agreement by Seller and the performance and observance of the terms have all been authorized by all necessary actions of Seller. This Agreement has received no written notice been duly executed and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding delivered by any person, entity or governmental agency, which would affect Seller and all third party consents required by Seller to enter into this Agreement have been obtained by Seller prior to the PropertyClosing Date. This Agreement is in full force and is enforceable against Seller in accordance with its terms.
(c) Seller has received no written notice and has no knowledge not entered into any other agreements for the sale, lease, license or other hypothecation of any governmental assessments concerning the Property, which are unpaidnor do there exist any rights of first refusal or options or other rights, whether or not of record, to purchase, acquire or lease all or any portion of, or interest in, the Property.
(d) Seller has no not received any written notice directed to Seller that the Property is in violation of any code, ordinance or other law applicable to the Property or Purchaser’s use.
(e) Seller has not received any written notice directed to Seller of any pending or threatened claims, actions, suits, arbitrations, investigations or proceedings affecting the Property or Seller’s ability to enter into this Agreement or consummate the transactions contemplated hereunder.
(f) To Seller’s knowledge, based upon the knowledge of and has received Xxx Xxxxx, without independent investigation except as set forth in that certain Phase I Environmental Site Assessment for ‘Lucent Technologies 75 Acre Purchase’, dated May 8, 2003, prepared by Hoexter Consulting, Inc., there are no written notice hazardous materials or toxic substances on or under the surface of any the Land in violation of lawapplicable laws or regulations.
(g) Purchaser agrees that Seller shall not be liable for consequential damages arising as a result of a defect warranted hereunder. Seller shall inform Purchaser of, municipal or county ordinances or codesand assign to Purchaser (to the extent assignable) at the close of escrow hereunder, or other legal requirements all written equipment warranties, if any, existing in favor of Seller which affect any equipment included solely in the Property caused to be constructed by Seller. The warranties to be given as set forth in this Paragraph 12 are all of the warranties of Seller with respect to the Property.
(e. EXCEPT TO THE EXTENT PROVIDED IN SECTION 14(G) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generationOF THIS AGREEMENT, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is orSELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE CONSTRUCTION OF THE PROPERTY INCLUDING, as of the Closing Date will beWITHOUT LIMITATION, the owner of fee simpleANY WARRANTIES OF FITNESS FOR PURPOSE, marketable title to the Property.
(g) None of the lots are located in a flood plain areaSUITABILITY OR MERCHANTABILITY.
(h) No improvements Seller has not received written notice from any governmental authority that the Property is not in compliance with or repairs have been made violates applicable environmental and zoning laws. Seller has not requested, applied for, given its consent to or will be made has knowledge of any pending zoning variances or change with respect to the Property on behalf Property. To the best of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing DateSeller’s knowledge, and there will be is no outstanding bills incurred for laborexisting, services and materials used in making improvements proposed or repairs on contemplated plan to widen, modify or realign any street or highway adjoining the Property on behalf of Seller which would affect access thereto, or for services of architects, surveyors any existing proposed or engineers engaged by Sellercontemplated eminent domain proceeding that would affect the Property in any way whatsoever.
(i) As The person executing any instruments for or on behalf of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments Seller was fully authorized to act on behalf of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with ClosingSeller.
(j) There is no agreement, in writing or otherwise, between Seller has made no representations to and any county other person or local authorities persons for service, supply, maintenance, management or the operation of the Property or any homeowners in the community regarding the type or style portion of the development business conducted thereon or thereat, which would become obligations of the PropertyPurchaser and which are not cancelable upon thirty (30) days’ notice, except, if any, for those disclosed in writing to Purchaser during the Feasibility Periodwithout payment of any penalty or premium.
(k) All labor performed and materials supplied for If Seller becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by Seller under this Agreement, whether as of the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien date given or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of time thereafter through the Closing Date and whether or not such representation or warranty was based upon Seller’s knowledge and/or belief as of a certain date, Seller will give prompt written notice of such changed fact or circumstance to Purchaser but such notice shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs not release Seller of its liabilities or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearobligations with respect thereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)In addition to other representations herein, Seller represents and warrants to Purchaser Buyer as of the date of closing that:
(a) No person8.1 Seller, firmand the person signing on behalf of Seller, has full power and authority to execute this Agreement and perform Seller's obligations and duties hereunder, and all necessary partnership action to authorize this transaction has been taken;
8.2 The Property is not subject to any leases, tenancies or entity (except as may be set forth rights of persons in this Agreement) has possession;
8.3 Neither the Property nor the sale of the Property violates any rights in applicable statute, ordinance or right regulation, nor any order of any court or any governmental authority or agency, pertaining to acquire the Property or the use occupancy or condition thereof;
8.4 Seller is unaware of any part thereof.material defect in the Property;
(b) 8.5 All persons and entities supplying labor, materials and equipment to the Property have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for public improvements against the Property and Seller is not aware of any local improvement district or other taxing authority having jurisdiction over the Property in the process of formation, except the Cross Valley Water District water and sewer ULID, currently under construction;
8.7 The Property has legal access to all streets and roads adjoining the Property;
8.8 Seller has received no written notice good and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.;
(g) None 8.9 Seller is not a "foreign person" for purposes of Section 1445 of the lots are located Internal Revenue Code. Prior to closing, Seller shall execute and deliver to Closing Agent an affidavit in a flood plain area.order to meet the Foreign Investment in Real Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
(h) No improvements or repairs have been made or will be made to 8.10 Seller has not received notification of any kind from any agency suggesting that the Property on behalf is or may be targeted for a Superfund or similar type of cleanup. To the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as best of the Closing DateSeller's knowledge, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on neither the Property on behalf of Seller nor any portion thereof is or for services of architects, surveyors or engineers engaged by Seller.
has been used (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit storage, disposal or discharge of the Seller on the Property of any kind against the Propertyoil, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities solvents, fuel, chemicals or any homeowners in the community regarding the type of toxic or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor dangerous or materials may claim no mechanic's lien hazardous waste or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Propertysubstance, except as specifically provided related to Purchaser in writing during the Feasibility Period. All use of the representations Property for an automotive dismantling and warranties of salvage yard since 1971, (ii) as a landfill or waste disposal site, and (iii) does not contain any underground storage tanks. Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify agrees to indemnify, defend and hold Buyer harmless the other party for from and against any and all loss, damagesdamage, claims, penalties, liability, suits, costs and expenses (including, without limitation, reasonable attorneys' fees) and also including without limitation, costs of remedial action or liabilities cleanup, suffered or incurred due by Buyer arising out of or related to any such use of the inaccuracy Property, or portion thereof. This indemnity shall survive the Closing for a period of one (1) year, if Seller fails to provide Buyer with an environmentally clean site determination in accordance with Section 4.5 and Buyer waives Section 4.5.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Eagle Hardware & Garden Inc/Wa/)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received the full right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller's assets is bound,
(iii) there is no written notice and existing or pending (or to Seller's knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no knowledge of of, and has not received any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of, any violation of any governmental assessments requirements (including "Environmental Requirements", as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(evi) The Property does not violate environmental laws applicable to it the list of contracts attached hereto as Exhibit "E" (the "Contracts"), is a true, correct and Seller has not used complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property for the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will be, the owner of fee simple, marketable title to Property under written leases for space in the Property., as shown on the rent roll attached hereto as Exhibit "F" (the "Rent Roll"), there are no parties in possession of, or claiming any possession to, any portion of the Property,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Roll,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, and all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects,
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Property, other than those items which are pro-rated in connection with Closing.,
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(lxv) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and to the best of Seller's knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvi) to the best of Seller's knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xvii) to the best of Seller's knowledge, there are no underground storage tanks located on or under the Property, there are no conditions on, at or relating to the Property which are in non-compliance with "Environmental Requirements" (as defined below), and there are no "Hazardous Materials" (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xviii) attached hereto as Schedule "B" and incorporated herein by reference, is a true, correct and complete list of all of the Loan Documents, and there are no liens encumbering the Property other than the Mortgage,
(xix) there are no defaults under the Loan Documents, nor have any events occurred which with the passage of time or the giving of notice or both would constitute a default under the Loan, the current unpaid principal balance of the Note is Three Million Forty Thousand and no/100 Dollars ($3,040,000.00), and there are no, and at Closing there shall be no, property management agreements affecting the Property. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, "Hazardous Materials" shall mean any substance which is or contains (i) any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA") or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.); (iv) gasoline, diesel fuel, or other conditionspetroleum hydrocarbons; (v) asbestos and asbestos containing materials, which do or would in any way adversely affect form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any "source material", "special nuclear material" or "byproduct material", as now or hereafter defined in 42 U.S.C. Section 2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under "Environmental Requirements" (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, "Environmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the successful operation use of the Property, except as specifically provided relating to Purchaser in writing during pollution, the Feasibility Period. All protection or regulation of human health, natural resources, or the representations and warranties environment, or the emission, discharge, release or threatened release of Seller shall be true and correct as of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossenvironment (including, damageswithout limitation, costs ambient air, surface water, ground water or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearland or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)Seller hereby represents, Seller represents warrants and warrants covenants to Purchaser thatand agrees with Buyer as follows:
(a) No person4.1.1 Seller has the legal right, firmpower and authority to own the Property and to enter into and consummate the transactions contemplated by this Agreement, and this Agreement and all instruments, documents and agreements to be executed by Seller in connection herewith are, or entity (when delivered shall be, duly authorized, executed and delivered by Seller and are, or when delivered shall be, valid, binding and enforceable obligations of Seller.
4.1.2 There are no pending or, to Seller’s knowledge, threatened legal proceedings, administrative actions, or pending governmental investigation of any kind or character adversely affecting the Project or Seller’s interest therein.
4.1.3 To Seller’s knowledge and except as may be set forth disclosed in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Due Diligence Documents, Seller has received no written notice and has no knowledge from any government authority of any actual violation of any statute, ordinance, code or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agencyregulation with respect to the Project, which would affect the Propertyviolation has not been corrected.
(c) 4.1.4 To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice and has no knowledge that the Project is in violation of any governmental assessments concerning federal, state and local laws, ordinances and regulations applicable to the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements Project with respect to “Hazardous Materials” (as defined below), nor to Seller’s knowledge have any Hazardous Materials been or are currently being produced, disposed of, used or stored on or under the Property in violation of applicable law.
4.1.5 Seller is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.
4.1.6 To Seller’s knowledge, the copies of the Leases and Contracts delivered to Buyer (or made available to Buyer) for its review are true and correct copies of the Leases and Contracts and are all of the Leases and Contracts affecting the Property.
4.1.7 As used herein, “to Seller’s knowledge” and phrases of similar import means the actual (enot constructive and without attribution) The Property does not violate environmental laws applicable conscious knowledge, without undertaking, and without any duty to it undertake, any investigation or inquiry, of Xxxxxxx Xxxxxxxxx and Xxxx Van Wyk, which individuals are the employees of Seller has not used (or its affiliates) with the Property operational/asset disposition responsibility for the generation, storage Project. It is expressly agreed and understood that in no event shall Buyer be entitled to bring any action(s) for damages or handling otherwise against such individuals. In the event Seller or Buyer should become aware of hazardous materials any facts or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of circumstances prior to the Closing Date will be, the owner that should render any of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the ’s representations and warranties of Seller that are limited to Seller’s knowledge no longer accurate, the party first becoming so aware shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless promptly notify the other party for any Buyer in writing, and all lossBuyer shall have the right, damagesas its sole and exclusive remedy, costs to terminate this Agreement by written notice to Seller and Escrow Holder delivered within seven (7) days after receipt of Seller’s notice or liabilities incurred due to the inaccuracy thereoffirst becoming aware of such facts, in which case this Agreement shall terminate in accordance with Section 3.3. This indemnity Section 4.1.7 shall survive the Closing for a period supersede any inconsistent provision of one (1) yearthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a1. Seller has full authority to sign this Agreement and all documents to be executed by Seller as contemplated by this Agreement. The individual(s) No personexecuting this Agreement and all such documents contemplated by this Agreement on behalf of Seller are duly elected or appointed and validly authorized to execute and deliver the same.
2. This Agreement constitutes a legal, firmvalid and binding obligation of Seller and, together with each of the documents to be executed by Seller as contemplated by this Agreement, is enforceable against Seller in accordance with its terms.
3. Seller is duly formed, validly existing and in good standing under the laws of the state of its formation and is qualified to transact business in the state where the Property is located.
4. Seller’s execution and delivery of this Agreement and Seller’s performance of its obligations in accordance with this Agreement will not constitute a violation, breach or default, nor result in the imposition of any lien or encumbrance upon the Property, under any agreement or other instrument to which Seller is a party or by which Seller or the Property is bound.
5. Seller owns good and marketable fee simple title to the Property that is insurable, subject only to the Permitted Exceptions. Buyer(s) Initials: /s/ AM Seller(s) Initials:/s/ BK
6. Seller has not received notice of any legal actions, suits or other legal or administrative proceedings pending or threatened against Seller or the Property, and Seller is not aware of any facts which might result in any such action, suit or other proceeding.
7. To Seller’s knowledge, the Property does not contain any hazardous wastes, hazardous substances, hazardous materials, toxic substances, hazardous air pollutants or toxic pollutants as those terms are used in the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Clean Air Act and the Clean Water Act, and in any amendments thereto, or entity in any regulations promulgated pursuant thereto, or in any applicable state or local law, regulation or ordinance.
8. Seller has no knowledge of (except i) any condemnation or zoning change affecting or contemplated with respect to the Property; (ii) any changes contemplated in any applicable laws, ordinances or restrictions affecting the use of the Property as may be set forth a mobile home park; or (iii) any liens or assessments (governmental or private), either pending or confirmed, with respect to sidewalk, paving, water, sewer, drainage or other improvements on or adjoining the Property or with respect to any property owners’ association, declaration or easement agreement (other than the lien of ad valorem property taxes that are not yet due and payable).
9. To Seller’s knowledge, Seller and the Property have complied and are currently in this Agreement) has any rights compliance with all applicable laws, ordinances, regulations, statutes, rules, restrictions and inspection requirements pertaining to or affecting the Property.
10. There are no Contracts for the Property which are, or will be, a binding obligation of Buyer or that could create a lien, leasehold or other possessory interest, security interest, or encumbrance in or right to acquire against the Property or any part thereof after the Closing, and Seller will deliver to Buyer true, correct and complete copies and originals of all Contracts as part of the Property Files in accordance with this Agreement. To Seller’s knowledge, each Contract is in full force and effect and there are no defaults or events that with notice or lapse of time or both which constitute a default by Seller or any other party to such Contracts.
11. There are no Leases other than as provided to Buyer in the Property Files, and Seller will deliver to Buyer true, correct and complete copies and originals thereof in accordance with this Agreement. To Seller’s knowledge, each Lease is in full force and effect and there are no defaults or events that with notice or lapse of time or both which constitute a default by Seller or the tenant under such Leases. Except as expressly provided in the Leases, there are no tenant finish costs, brokerage commissions or other leasing costs paid or payable in connection with any Lease or renewal or expansion thereof.
(b) 12. The Due Diligence Materials delivered by Seller has received no written notice to Buyer in accordance with this Agreement are full, complete and has no knowledge accurate copies of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertyall Due Diligence Materials within Seller’s possession.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Manufactured Housing Properties Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby represents and warrants to Purchaser Buyer that:
(a) No person, firmas of the date this Agreement is executed, or entity and as of the Closing Date (except as may provided otherwise below), as follows:
A. The persons executing this Agreement on behalf of the Seller are duly authorized to do so and are authorized to sell the Property. Seller is the owner in fee of the Property and the Property will not be set forth encumbered by any liens, easements, or licenses except for the Permitted Exceptions, as defined in this Agreement) has any rights in Section 3.01B hereof.
B. To the best of Seller's knowledge, there is no pending condemnation or right to acquire similar proceeding affecting the Property or any part portion thereof.
(b) , and Seller has not received no written any notice and has no knowledge that any such proceeding is contemplated as of the date of this Agreement.
C. There are no contracts or other obligations outstanding for the sale, exchange, lease or transfer of the Property or any portion thereof.
D. Seller is not aware of any actual violation of any zoning, land use, building, health, flood control, fire or threatened actionother law, litigationordinance, rezoningor regulation relating to the Build-to-Suit Parcel or the Expansion Parcel as of the date of this Agreement.
E. Except as disclosed in writing to Buyer by the Delivery Items and/or as disclosed on the Title Report, condemnation or proceeding Survey, or as approved by Buyer pursuant to the Work Letter Agreement, Seller has not made and will not make any personcommitments to the applicable governmental authorities, entity or governmental agencyany adjoining or surrounding property owners that would interfere with Buyer's ability to expand the Improvements on the Expansion Parcel and Build-to-Suit Parcel in the manner contemplated by this Agreement.
F. There are no attachments, which would affect executions, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws contemplated or filed by Seller or pending against Seller or the Property.
G. Seller is not a foreign individual, foreign corporation, foreign partnership, foreign trust, or foreign estate (c) as those terms are defined in the Internal Revenue Code and Income Tax Regulations). Seller has received no written notice shall execute and has no knowledge deliver to Buyer at the Closing an affidavit substantially in the form of any governmental assessments concerning Exhibit "E" attached hereto, certifying the Property, representations and warranties made pursuant to this subsection.
H. All the documents executed by Seller which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable be delivered to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance Buyer on or from before the Property.
(f) Seller is orClosing Date are, as of and on the Closing Date will bebe legal, valid, and binding obligations of Seller.
I. Except as disclosed by the owner Delivery Items or Buyers review of fee simplepublic records and other reports it receives during Buyer's Review Period, marketable title including existing environmental, zoning, land use, health, fire, flood control and other applicable laws, ordinances and regulations, or as disclosed to Buyer pursuant to the Work Letter Agreement, Seller has not failed to disclose to Buyer any material fact that Seller has actual knowledge of and that materially and adversely affects the condition of the Build-to-Suit Parcel or Expansion Parcel as of the date of this Agreement.
J. From and after the date hereof, and except as otherwise provided in this subparagraph, Seller shall not without the prior written consent of Buyer enter into any agreement, contract, commitment, lease or other transaction to sell, dispose of or lease any portion of the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Industrial and Build to Suit Purchase and Sale Agreement (Esterline Technologies Corp)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), The Seller represents and warrants to Purchaser thatas follows:
(a) No person, firm, or entity (except as may be set forth The Seller is a validly existing corporation duly organized under the laws of the State of Delaware and qualified to transact business in this Agreement) has any rights in or right to acquire the Property or any part thereofState of Connecticut.
(b) The Seller has received no written notice full power, capacity and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding authority to execute this Agreement and all other documents required to be executed and delivered by any person, entity or governmental agency, which would affect the PropertySeller under this Agreement (the “Seller Documents”) and to perform its obligations hereunder.
(c) Seller has received no written notice is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and has no knowledge of any governmental assessments concerning the Property, which are unpaidIncome Tax Regulations there under.
(d) Seller has no knowledge of and has received no written notice of not granted to any violation of lawparty any option, municipal or county ordinances or codes, contract or other legal requirements agreement with respect to the Propertypurchase or sale of the Premises.
(e) The Property does not violate environmental laws applicable Prior to it or at the Closing, the Seller shall deliver to the Purchaser (i) a copy of the Seller’s corporate resolutions authorizing the Seller to enter into this Agreement, consummate the transactions and Seller has not used assume the Property for the generationobligations set forth herein, storage or handling and (ii) a Certificate of hazardous materials or contaminants and there has been no release of a hazardous substance on or Existence from the PropertySecretary of the State of Connecticut.
(f) Seller There is or, as of the Closing Date will be, the owner of fee simple, marketable title no litigation or other proceeding pending against or relating to the Property.
(g) None Premises. To the best of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made Seller’s knowledge, there is no pending investigation and no threatened litigation relating to the Property on behalf Premises. Seller does not know of any existing facts that could give rise to such litigation, investigation or proceeding. To the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as best of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date's knowledge, there will be is no unpaid bills pending, threatened or liens for past due taxes planned condemnation or assessments of taking by eminent domain by any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due governmental agency relating to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearPremises.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), The Seller hereby represents and warrants to the Purchaser thatas follows:
(a) No person, firm, or entity (except Except as may be set forth in this Agreement) Exhibit C attached hereto, the Seller has not consented to any rights in amendment or right to acquire modification of the Property Financing Documents. To the best of the Seller's knowledge, no uncured default of the Seller exists under the Financing Documents, and no other event has occurred which, after notice or any part thereoflapse of time or both, would be an Event of Default thereunder.
(b) Seller has received no written notice Attached as Exhibit D hereto is the rent roll of the Project as of June 9, 1997. To the best of the Seller's knowledge, the rent roll and has no knowledge all information therein are accurate as of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertyits date.
(c) Seller has received Except for the property management contract, there are no written notice Service Contracts with respect to the Project or any part thereof except as set forth in Exhibit E attached hereto. Each of the Service Contracts is in full force and has effect and, to the best of the Seller's knowledge, neither party is in material default thereunder. There are no knowledge of any governmental assessments concerning amendments to the Property, which are unpaidService Contracts or modifications except as set forth in Exhibit E attached hereto.
(d) Seller has no knowledge Attached hereto as Exhibit F are true and correct copies of the most recent bills for real estate taxes and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect personal property taxes relating to the PropertyProject.
(e) The Property does not violate environmental laws applicable Seller presently maintains in full force and effect policies of insurance against loss or damage to it and Seller has not used the Property for improvements located at the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the PropertyProject.
(f) Seller is or, as Between the date of this Agreement and the earlier of the delivery of a Termination Notice or the Closing Date set forth herein, without the consent or approval of the Purchaser:
(i) The Seller will benot make any material alterations or changes to the Project, except in the event of emergency as required for safety of persons or property or except as required by any governmental authority, and will not suffer or permit any material deterioration in the condition of the improvements thereon, ordinary wear and tear, fire and casualty and acts of God, the owner of fee simple, marketable title Purchaser and its consultants and agents excepted; and
(ii) The Seller will not enter into any amendments to the Property.
(g) None of Service Contracts and the lots are located in a flood plain area.
(h) No improvements Seller will not enter into any service agreements or repairs have been made or will be made other contracts with respect to the Property on behalf Project, other than Service Contracts or similar contracts entered into in the ordinary course of business (the term "Service Contracts" shall mean and include all such amendments and service agreements and other contracts entered into by the Seller during with respect to the 90 days immediately preceding Project in compliance with this provision or approved by the Closing Date which will not be paid for in full Purchaser as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller).
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Walden Residential Properties Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer, which representations and warranties are also deemed to be made on the Closing Date but which shall not survive the Closing:
(a) No person, firm, or entity (There are no parties in possession of any portion of the Property except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereoftenants under unrecorded leases.
(b) Seller has received There is no written notice and has no pending or, to the knowledge of any actual or Seller, threatened action, litigation, rezoning, condemnation or similar proceeding by any personor special assessment (inclusive of assessments for street widening, entity repair, or governmental agencyimprovement), which would affect or change in zoning affecting the Property.
(c) Seller has received no written notice and has no knowledge concerning the Property from (i) any Governmental Authority (as defined below in this Paragraph) about a violation of any governmental assessments concerning federal, state, county, or city statute, ordinance, code, rule, or regulation or stating that any investigation has commenced or is contemplated regarding any violation, or (ii) any insurance agency currently providing insurance for the Property about any defect or inadequacy in the Property which would materially and adversely effect the insurability of the Property, which are unpaid.
(d) Seller has There is no knowledge of and has received no written notice of any violation of lawpending or, municipal to Seller's knowledge, threatened litigation or county ordinances or codes, or other legal requirements with respect to administrative proceeding affecting the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property There are no attachments, executions, assignments for the generationbenefit of creditors, storage or handling of hazardous materials voluntary or contaminants and there has been no release of a hazardous substance on involuntary proceedings in bankruptcy or from the Propertyunder other debtor relief laws contemplated by, pending, or threatened against Seller.
(f) Seller is orTo Seller's knowledge, as of the Closing Date will be, the owner of fee simple, marketable title to no tax liens or judgments affect the Property.
(g) None There are no unpaid charges, debts, liabilities, claims, or obligations arising from the ownership or operation of the lots are located in a flood plain areaProperty that could give rise to any mechanics' or materialman's or other statutory liens against the Property or for which Buyer will be responsible.
(h) No improvements or repairs have been made or will be made to To Seller's knowledge, the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Datehas access to and from dedicated and accepted public highways, and there will be streets, or roads. There is no outstanding bills incurred for laborpending or, services and materials used in making improvements to Seller's knowledge, threatened action by any Governmental Authority to limit or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Sellerterminate that access.
(i) As of To Seller's knowledge, such knowledge being limited to the Closing DateESA, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided the Property has not been used for the benefit disposal or dumping of the Seller nor has there been any spillage, seepage, or uncontrolled loss on or filtration from or onto the Property of any kind against "hazardous substances" or "hazardous wastes", and the PropertyProperty contains no such "hazardous substances" or "hazardous wastes", other than as those items which terms are pro-rated defined in connection with Closingthe Comprehensive Environment Response, Compensation, and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 (RCRA) the Superfund Amendments and Reauthorization Act of 1986, the Clean Water Act, the Federal Water Pollution Control Act, and the Federal Environmental Pesticides Act, all as amended, and all rules and regulations applicable to each, and, for purposes hereof, the term "hazardous substances" also include asbestos, asbestos containing material, petroleum and refined petroleum products.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style The Leases available for review by Buyer are true and correct copies of the development actual leases in Seller's possession and are the complete written documentation of the Propertyagreement between the Seller, exceptas landlord, if anyand the tenant; there are no material oral agreements or undisclosed material written agreements between Seller, for those as landlord, and any tenant which have not been fully disclosed in writing to Purchaser during the Feasibility PeriodBuyer.
(k) All labor performed The Service Contracts available for review by Buyer are true and materials supplied for correct copies of the Property have been fully paid by actual service contracts in Seller, 's possession and any person for such labor are the complete written documentation of the agreement between the Seller and the respective party or materials may claim no mechanic's lien or any other lienparties thereto.
(l) Seller has no knowledge or information all requisite authority to enter into this Contract and to consummate the transactions contemplated by this Contract; and
(m) Neither the entering into of this Contract nor the consummation of the transactions contemplated by this Contract:
(i) constitute a breach by Seller of any factsinstrument to which Seller is a party, circumstancesto which it is subject, or by which any of its assets may be affected;
(ii) constitute a violation of any judgment, order, writ, injunction, or decree issued against or imposed upon Seller; or
(iii) result in a violation of any applicable law by Seller. The terms Governmental Authority and Governmental Authorities mean the United States of America, the State of Delaware, New Castle County (the County), and any other political subdivision in which the Property is located or which exercises jurisdiction over the Property or the construction of improvements on the Property, and any agency, department, commission, board, bureau, property owners association, utility district, flood control district, improvement district, or similar district, or other conditions, which do or would in instrumentality of any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearthem.
Appears in 1 contract
Samples: Contract of Sale (Hologic Inc)
Seller’s Representations and Warranties. As Seller hereby represents and warrants to Buyer as of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatas of the Closing Date as follows:
(a) No person1. Seller has full right and is duly authorized to enter into and consummate this Contract.
2. Seller has complied with all applicable Federal, firmState, County and Municipal regulations, rules, ordinances, statutes and other requirements and restrictions with respect to all matters relating or pertaining to the Property.
3. There are no parties in possession, or entity entitled to possession, of the Property (or any part thereof) other than Seller and the Property is not subject to any lease, such that Seller shall deliver sole and exclusive use and possession of the Property to Buyer at Closing.
4. There in no litigation, investigation or proceeding pending, or to the knowledge of Seller threatened, against Seller relating to or affecting the Property or otherwise adversely affecting Seller's ability to perform its obligations hereunder,
5. There are no commitments to or agreements with any governmental authorities, agencies, utilities or quasi-governmental entities or any other entities or persons which might adversely affect Buyer's ability to use and develop the Property, except as may be specifically set forth herein.
6. To the best of Seller's knowledge, without a duty of investigation, the Property has not in this Agreementthe past been used, and is not presently being used and will not in the future (for so long as Seller owns same) be used for the handling, storage, transportation or disposal of hazardous or toxic materials, and Seller has not received a summons, citation, directive, letter or other communications, written or oral, from any rights agency or department of the State of Florida or the U.S. Government concerning any intentional or unintentional action or omission which resulted in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous material on the Property or on the real Property adjoining and/or contiguous to the Property.
7. Seller is not in default with respect to any of its obligations or liabilities pertaining to the Property, which could not be cured on or before the Closing,
8. Seller has not entered into any other existing agreements for the sale, conveyance, assignment or other transfer of the Property or any part of it.
9. To the best of Seller's knowledge no condemnation proceeding under the right to acquire of eminent domain is currently pending or threatened which affects the Property or any part thereof.
(b) 10. Seller has received no written notice and has no knowledge of any actual plan, study or threatened action, litigation, rezoning, condemnation or proceeding effort by any persongovernmental agency or authority, entity to widen, modify or governmental agency, which would affect realign any street or highway providing direct access to the Property.
(c) 11. There are no contracts for labor or services affecting the Property.
12. The Property shall he free of all zoning code violations and Seller has not received no written any notice of any such violations.
13. Seller has not received any notice from or regarding and Seller has no knowledge of any governmental assessments concerning fact that could give rise to the possible or anticipated revocation, non-renewal or disapproval of any existing licenses, permits, registrations or approvals pertaining to the Real Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements that might impair Buyer's right to obtain the permits with respect to the Real Property.
(e) The Property does not violate environmental laws applicable . Seller will reasonably cooperate with Buyer in any effort of Buyer to it and Seller has not used the Property obtain, for the generationReal Property, storage or handling of hazardous materials or contaminants and there has been any public agency permitting desired by Buyer, at no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title expense to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of 14. Seller shall not take any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstancesaction, or other conditionsomit to take any action, which do action or omission would in have the effect of violating any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearcontained in this Contract.
Appears in 1 contract
Samples: Real Estate Sale Contract (Royal Palm Beach Colony LTD Partnership)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatthe following:
(a) No personSeller has or will have at Closing good, firmindefeasible, and fee simple title to the Property, free and clear of all mortgages, liens, encumbrances, leases, tenancies, security interest, covenants, conditions restrictions, rights-of-way, easements, judgments or entity (except as may be set forth in this Agreement) has any rights in or right to acquire other matters affecting title other than those shown on Schedule B of the Property or any part thereofCommitment and otherwise permitted herein.
(b) This Contract has been duly authorized and executed by Seller has received no written notice and has no knowledge of any actual or threatened actionis a valid and binding obligation of, litigationand is enforceable, rezoningin accordance with its terms, condemnation or proceeding against Seller. The documents delivered to Purchaser at Closing will be duly authorized and executed by any personSeller and will be a valid and binding obligation of, entity or governmental agencyand will be enforceable in accordance with their terms, which would affect the Propertyagainst Seller.
(c) Seller has received There is no written notice and has no knowledge of pending or threatened condemnation or similar proceeding affecting the Property or any governmental assessments concerning portion thereof, or pending public improvements, liens, or special assessments, in, about or outside the Property which will in any manner affect the Property or access to the Property, nor any legal action of any kind or character whatsoever affecting the Property which are unpaidwill in any manner affect Purchaser upon the consummation hereof, nor is any such action presently contemplated.
(d) To the best of Seller's knowledge, Seller has no knowledge complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions pending to and affecting the Property. Performance of and has received no written notice of this Contract will not result in any violation of law, municipal or county ordinances or codesbreach of, or constitute any default under, or result in imposition of, any lien or encumbrance upon the Property under any agreement or other legal requirements with respect instrument to which Seller is a party or by which Seller or the PropertyProperty might be bound.
(e) The Property does not violate environmental laws applicable to it Seller will operate and Seller has not used manage the Property for in substantially the generation, storage or handling of hazardous materials or contaminants and there same manner it has been no release operated and managed and will maintain the physical condition of a hazardous substance on the Property in the same or from better condition as it presently exists to the Propertydate of Closing, reasonable wear and tear excepted.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title The rent roll delivered pursuant to the Property.
(g) None of the lots are located in a flood plain area.Paragraph 6.2
(h) No improvements or repairs have been made or will be made is the Current Rent Roll. Not earlier than five (5) days prior to Closing, Seller shall deliver a Revised Rent Roll to Purchaser, certified by Seller in writing as true and correct which Revised Rent Roll shall set forth the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.following:
(i) As the name of each tenant;
(ii) the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments lease commencement and expiration dates;
(iii) the amount of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for security deposits;
(iv) a list of vacant space;
(v) the benefit size and type of each vacant area; and
(vi) the Seller on the Property amount and description of any kind against the Property, other than those items which are pro-rated in connection with Closingconcessions.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Real Estate Sales Contract (Walden Residential Properties Inc)
Seller’s Representations and Warranties. As In consideration of Buyer's entering into this Agreement and as an inducement to Buyer to purchase the Effective Date (unless a different date is specified)Property, Seller represents and warrants to Purchaser thatBuyer as follows:
(ai) No personThis Agreement has been, firmand all of the documents to be delivered by Seller at the Closing will be, duly and validly authorized, executed and delivered by Seller and no other action is requisite to the valid and binding execution, delivery and performance of this Agreement or the documents to be delivered at the Closing by Seller.
(ii) There are no actions, suits or proceedings pending against, or entity (except as may be set forth to Seller's knowledge threatened against, Seller or the Property, and Seller has not received any written notice that there are any pending or threatened proceedings in this Agreement) has any rights in eminent domain or right to acquire otherwise which would affect the Property or any part thereofportion thereof in any material respect.
(biii) Seller has not received any written notice that there are any violations of law or governmental regulation with respect to the Property or its use including any environmental law or regulation, nor any written notice that the Property is in violation of any applicable building or zoning code or ordinance, except for any such matters which may have been previously cured by Seller.
(iv) Seller is not a "foreign person" within the meaning of Section 1445 et seq. of the Federal Code.
(v) Seller has been duly organized and is validly existing as a corporation, in good standing in the State of Illinois and is qualified to do business in the state in which the Property is located.
(vi) No person has any title, interest or right to possession of all or any portion of the Property as lessee, sublessee, tenant or concessionaire of Seller.
(vii) The financial statements provided to Buyer by Seller were prepared by or for Seller in the ordinary course of its business in the same manner as it prepares or obtains such statements for its own use and reporting to the Securities and Exchange Commission.
(viii) To Seller's knowledge, the list of contracts, agreements and insurance policies delivered or to be delivered to Buyer pursuant to Section 9.2(a)(ix) of this Agreement is or will be true, correct, and complete as of the date of its delivery. Neither Seller nor, to Seller's knowledge, any other party is in material default under any such contract, agreement or insurance policy. To Seller's knowledge, no present dispute or fact exists which might with notice, passage of time or both, give rise to a material default under any Contract.
(ix) All books, records and other information prepared by or for Seller and provided to, or made available to, Buyer were prepared by or for Seller in the ordinary course of its business and are the same books, records and other information used and relied upon by Seller in its use, ownership, maintenance and operation of the Property.
(x) There are no unsatisfied written requests for material repairs, restorations or improvements from any insurance carrier or governmental authority. Seller has not received any written notice from any insurer of any defects or inadequacies in any part of the Property which would adversely affect its insurability, or written notice of any claims of any governmental agency to the effect that the construction, operation or use of any of the Property is in violation of any applicable law, ordinance, rule, regulation or order.
(xi) Seller has received no written notice and Seller has no knowledge of any actual (1) currently existing violations of federal, state, county or municipal environmental laws in respect to the Property, or (2) past, pending or threatened actionadministrative or judicial litigation or other legal proceedings including, litigationwithout limitation, rezoningany enforcement proceeding under any federal, condemnation state, county or proceeding by municipal statute, ordinance, rule or regulation concerning Hazardous Materials, relating to the Property, or of any personsettlement thereof.
(xii) Except for tanks, entity retention basins, and/or vaults relating to storm water control, there are no underground storage tanks located on or governmental agency, which would affect below the Property.
(cxiii) Seller does not, use, nor has it used any Hazardous Materials on the Property except for normal quantities of consumer products and those Hazardous Materials which are disclosed pursuant to Exhibit "C" to the Lease and as may otherwise be allowed by the Lease.
(xiv) Seller has received no written notice not, and has no knowledge shall not have prior to the Closing (a) commenced a voluntary case, or had entered against it a petition for relief, under any federal bankruptcy act or any similar petition, order or decree under any Federal or State law or statue relative to bankruptcy, insolvency or other relief for debtors; (b) caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator, liquidator or similar official in any governmental assessments concerning federal, state or foreign judicial or non-judicial proceeding, to hold, administer and/or liquidate all or substantially all of Seller's assets; or (c) made a general assignment for the Property, which are unpaidbenefit of its creditors.
(dxv) To Seller's knowledge, Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect disclosed to Buyer all known environmental conditions affecting the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(kxvi) All labor performed and due diligence materials supplied delivered or made available for inspection in furtherance of Buyer's inspection of the Property have been fully paid prepared and assembled in the ordinary course of Seller's business or were assembled at Seller's request for purposes of the transaction contemplated by this Agreement. To Seller's knowledge, the due diligence materials delivered or made available to Buyer are complete and any person for such labor or materials may claim no mechanicresponsive to Buyer's lien or any other liendue diligence information request.
(lxvii) Joe Packwood (Facilities Manager) is the person asxxxxxxxx xxxh Seller has no knowledge or information who is most knowledgeable about the Property and the matters represented and warranted herein concerning the condition of any factsthe Property and is the person responsible for the day to day operation, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation repair and maintenance of the Property. J. Michael Dodson is the person associated with Sellex xxx xx xxxx knowledgeable about Seller and the matters represented and warranted herein concerning Seller. Except as expressly herein otherwise provided, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller set forth in this Agreement shall be true on and correct as of the Effective Date and as of the Closing Date and Seller shall re-certify the as if those same representations and warranties were made on the Closing Date and shall indemnify as of such time. Such representations and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity warranties shall survive the Closing for a period of one (1) year. As used herein, "Seller's knowledge" shall be limited to the knowledge of J. Michael Dodson and Joe Packwood, without investigation or verificatixx. Xx, xx xxx time xxxxx xx Xxosing, Seller shall discover that any representation or warranty contained herein has become inaccurate in any respect, Seller shall notify Buyer in writing ("CORRECTION NOTICE"), and Buyer shall have the right if the inaccuracy of such representation and warranty is not the result of a default by Seller hereunder, as its sole remedy, by written notice to Seller and the Title Company delivered not later than the latter of (i) five (5) days after receipt of the Correction Notice, or (ii) the expiration of the Due Diligence Period, to terminate this Agreement and receive a refund of the Earnest Money. If the inaccuracy in such representation and warranty xx xxx result of a default by Seller, the provisions of Section 11.1 shall apply.
Appears in 1 contract
Seller’s Representations and Warranties. As of Buyer acknowledges that Seller does not presently hold title and has no operating history on the Effective Date (unless a different date is specified)Property. Notwithstanding, in addition to other representations herein, Seller represents and warrants to Purchaser Buyer as of the date of closing that:
(a) No person8.1 Seller has full power and authority to execute this Agreement and perform Seller's obligations and duties hereunder;
8.2 To the best of Seller's knowledge, firmthe Property is not subject to any leases, tenancies or entity (except as may be set forth rights of persons in this Agreement) has possession;
8.3 To the best of Seller's knowledge, neither the Property nor the sale, of the Property violates any rights in applicable statute, ordinance or right regulation, nor any order of any court or any governmental authority or agency, pertaining to acquire the Property or any part the use occupancy or condition thereof.;
(b) 8.4 Seller has received no written notice and has no knowledge is unaware of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect material defect in the Property.;
(c) 8.5 To the best of Seller's knowledge, all persons and entities supplying labor, materials and equipment to the Property have been paid and there are no claims or liens;
8.6 To the best of Seller's knowledge, there are no currently due and payable assessments for public improvements against the Property and Seller has received no written notice and has no knowledge is not aware of any governmental assessments concerning local improvement district or other taxing authority having jurisdiction over the Property in the process of formation;
8.7 To the best of Seller's knowledge, the Property has legal access to all streets adjoining the Property, which are unpaid.;
(d) 8.8 Seller has no knowledge of will have good and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.Property at Closing;
(g) None 8.9 Seller is not a "foreign person" for purposes of Section 1445 of the lots are located Internal Revenue Code. Prior to closing, Seller shall execute and deliver to Closing Agent an affidavit in a flood plain area.order to meet the Foreign Investment in Real Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
(h) No improvements or repairs have been made or will be made to 8.10 Seller has not received notification of any kind from any agency suggesting that the Property on behalf is or may be targeted for a Superfund or similar type of cleanup. To the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as best of the Closing DateSeller's knowledge, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on neither the Property on behalf of Seller nor any portion thereof is or for services of architects, surveyors or engineers engaged by Seller.
has been used (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit storage, disposal or discharge of the Seller on the Property of any kind against the Propertyoil, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities solvents, fuel, chemicals or any homeowners in the community regarding the type of toxic or style of the development of the Propertydangerous or hazardous waste or substance, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(kii) All labor performed and materials supplied for the Property have been fully paid by Selleras a landfill or waste disposal site, and (iii) does not contain any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Propertyunderground storage tanks, except as specifically provided disclosed in a Phase I Environmental Assessment Report dated October 3, 1997, and the Site Assessment Report dated February 4, 1998, both prepared by Xxxx Environmental Management, Inc. Seller agrees to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify indemnify, defend and hold Buyer harmless the other party for from and against any and all loss, damagesdamage, claims, penalties, liability, suits, costs and expenses (including, without limitation, reasonable attorneys' fees) and also including without limitation, costs of remedial action or liabilities cleanup, suffered or incurred due by Buyer arising out of or related to any such use of the Property, or portion thereof, occurring prior to the inaccuracy thereof. This indemnity shall survive the conveyance to Buyer, about which Seller knew or reasonably should have known prior to Closing for a period of one (1) yearand did not disclose to Buyer.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Eagle Hardware & Garden Inc/Wa/)
Seller’s Representations and Warranties. As Seller makes the representations and warranties to Buyer which are set forth below, as of the Effective Date (unless a different date is specified)and as of the Closing Date. This Agreement has been duly authorized, executed and delivered by Seller represents and warrants all consents required under Seller's organizational documents or by law have been obtained. All documents that are to Purchaser that:
(a) No person, firmbe executed by Seller and delivered to Buyer on the Closing Date have been, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simpleduly executed, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property authorized and delivered by Seller. This Agreement and all such documents are, and on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for be, legal, valid and binding obligations of Seller, enforceable in full as accordance with their terms and do not, and, at the time of the Closing DateDate will not, violate any provisions of any agreement or judicial or administrative order to which Seller is a party or to which Seller or the Property (or any portion thereof) is subject. Each Seller is a limited liability company duly formed, currently existing and in good standing under the laws of the State of Delaware, is qualified to transact business in the State of Georgia, and there will be no outstanding bills incurred for labor, services has the limited liability company power and materials used in making improvements or repairs on authority to consummate the Property transactions contemplated by this Agreement. Each individual executing this Agreement on behalf of Seller represents and warrants to Buyer that he or for services she is duly authorized to do so. To the best of architectsSeller's knowledge, surveyors or engineers engaged by Seller.
(i) As of the Closing Dateexcept as set forth in Exhibit "M" attached hereto, there will be are no unpaid bills actions, suits or liens for past due taxes proceedings (including arbitration proceedings) pending or assessments to the best of Seller's knowledge, threatened against Seller which could have a material adverse effect on any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development portion of the Property, exceptSeller's interest therein, if anyor Seller's ability to perform its obligations hereunder. To the best of Seller's knowledge, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information not received any written notice of any facts, circumstances, or other conditions, which do or would in any way adversely affect a condemnation action against the Property. Except as listed on Exhibit "B", to the best of Seller's knowledge, there are no material contracts or agreements related to the successful use, ownership or operation of the PropertyProperty which would be binding upon Buyer after the Closing. True, except correct and complete copies of all Contracts listed on Exhibit "B" have been delivered or made available to Buyer. Seller is not a foreign corporation, foreign partnership or foreign estate (as specifically provided to Purchaser such terms are defined in writing during the Feasibility Period. All Section 1445 of the representations and warranties of Internal Revenue Code). Seller shall be true and correct provide Buyer with an affidavit to this effect at Closing. Except as listed on Exhibit "C", there are no leases of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for Buildings or any and all loss, damages, costs or liabilities incurred due to the inaccuracy portion thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Seller’s Representations and Warranties. As The Seller hereby makes the following covenants, representations and warranties to the Purchaser as of the Effective Date (unless a different date is specified)Date, Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will bewith the understanding that each of the following covenants, representations and warranties are material and have been relied upon by the owner of fee simplePurchaser in connection herewith:
A. The Seller has good, marketable and insurable fee simple title to the Land and Improvements, has entered into no agreement that would limit or restrict the Seller’s right to enter into this Agreement and fulfill its obligations hereunder, and otherwise has the ability to convey to the Purchaser good, marketable and insurable fee simple title to the Property, subject only to the Permitted Exceptions.
(g) None B. To the best of the lots Seller’s knowledge, the Property is not subject to any construction liens, nor are located there any third parties in a flood plain areaor entitled to possession, occupancy or use of the Property except as set forth on the Rent Roll.
C. The Rent Roll and Tenant Leases to be delivered by the Seller to the Purchaser, as they shall be updated from time to time through and including the Closing Date, are and shall be complete, true and accurate in all material respects, and to the best of the Seller’s knowledge: (hi) No improvements the Tenant Leases are in full force and effect and have not been modified or repairs have amended except as disclosed, in writing, to the Purchaser; (ii) there are no defenses or offsets thereto by the Tenant(s) thereunder; and (iii) there are no defaults by the Seller, as landlord, or the Tenant(s) under such Tenant Leases.
D. The Property Contracts to be delivered by the Seller to the Purchaser, as they shall be updated from time to time through and including the Closing Date, are and shall be complete, true and accurate in all material respects and there are no defaults under such Property Contracts.
E. The Seller has not received any notice of, nor is it aware of, any pending action to take all or any portion of the Property, nor has the Seller agreed or committed to dedicate any part of the Property.
F. The Property has free and full access to and from all adjoining streets, roads and highways, including but not limited to Professional Drive, and there is no pending or, to the best of the Seller’s knowledge, threatened action that would limit or impair such access.
G. To the best of the Seller’s knowledge the Property has not been made classified under any designation authorized by law to obtain a special low ad valorem tax rate or receive either an abatement or deferment of ad valorem taxes that, in such case, will be made result in additional, catch-up ad valorem taxes in the future in order to recover the amounts previously abated or deferred. There are no minimum value, minimum tax or other agreements with respect to the Property that would restrict the Purchaser’s right to contest the value or taxes attributable to the Property. The Property is not subject to any special assessments, an assessment district or any other governmental or quasi-governmental financing for the payment of any on or off-site improvements. The Property has been fully assessed since the construction of all Improvements has been completed.
H. To the best of the Seller’s knowledge neither the Property nor its use is in violation of any local governmental rule, ordinance, regulation or building code, nor is there a pending or threatened investigation regarding a possible violation of any of the foregoing.
I. The Seller has not received any notice of, nor is it aware of, any litigation or administrative proceeding pending or threatened (including the expiration of any appeal period with respect thereto) relating to the Property or to its use which may adversely affect the validity of any license, permit or other governmental determination or authorization necessary to the operation of the Property.
J. From the Effective Date and through and including the Closing Date or the earlier termination of this Agreement, the Seller agrees to operate the Property consistent with the Seller’s operation of the Property prior to the Effective Date, and during such period the Seller agrees to: (i) refrain from transferring any portion of the Property or granting, or permitting the creation of, any easements, liens, claims, charges, mortgages, pledges, security interests, restrictions, or encumbrances upon the Property, (ii) refrain from entering into any contracts or other commitments burdening the Property without the prior written consent of the Purchaser which consent may be withheld in the Purchaser’s sole and absolute discretion; provided, however, that the Seller may, without the Purchaser’s consent, enter into any contract in the ordinary and usual course of business provided that any such contract may be terminated on no more than thirty (30) calendar days’ written notice; (iii) refrain from entering into any lease of the Property without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld; (iv) refrain from modifying, amending, terminating or renewing any existing lease(s) burdening the Property without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld; (v) refrain from consenting to any assignment or sublease in connection with any lease without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld; (vi) with the exception of ongoing cosmetic improvements, refrain from constructing any new improvements on, above or below the surface of the Land without the prior written consent of the Purchaser, which consent may be withheld in the Purchaser’s sole and absolute discretion (vii) keep in effect public liability and hazardous and extended coverage insurance for the Property, which insurance may be in the form of a blanket policy or policies; and (viii) use reasonable efforts to deliver to the Purchaser, promptly after receipt thereof, copies of all notices of violations of any laws, ordinances, regulations, orders, codes or requirements of any governmental authority having jurisdiction over the Property or the use or operation thereof.
K. The Seller is not a “foreign person” as contemplated by Section 1445 of the Internal Revenue Code. Neither the Seller nor any of its affiliates is a person or entity with whom U.S. persons or entities are restricted or prohibited from doing business under any laws, orders, statutes, regulations or other governmental action relating to terrorism or money laundering (including Executive Order No. 13224 effective September 24, 2001, and regulations of the Office of Foreign Asset Control of the Department of the Treasury) (“Blocked Persons”), and, to the best of the Seller’s knowledge, neither the Seller nor any of its affiliates engages in any dealings or transactions with any Blocked Person or is otherwise associated with a Blocked Person.
L. The Seller has the full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by the Seller pursuant hereto, and all required actions and approvals therefor have been duly taken and obtained. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of the Seller during are and shall be duly authorized to sign the 90 days immediately preceding same on the Seller’s behalf and to bind the Seller thereto.
M. This Agreement and all documents to be executed pursuant hereto by the Seller are and shall be binding upon and enforceable against the Seller in accordance with their respective terms, and the transaction contemplated hereby will not result in a breach of, or constitute a default or permit acceleration and maturity under, any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Seller or the Property is subject or by which the Seller or the Property is bound.
N. The Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by the Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of the Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of the Seller’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
O. To the best of the Seller’s knowledge all utility services, including water, sanitary sewer, storm sewer, gas, electric, telephone and cable television facilities, are available to service the Property with connections at the boundary lines of the Property which adjoin public streets or pass through or are located on adjoining private land pursuant to easements running in favor of the Property.
P. To the best of the Seller’s knowledge, all information pertaining to the Property delivered by the Seller to the Purchaser, including by way of illustration and not limitation, all books, records, financial statements, leases, mortgages, contracts and other documents, is and shall be, complete, true and accurate, in all material respects.
Q. At or before the Closing Date which will not be Date, Seller shall have paid for or shall have caused to pay all outstanding amounts due under all outstanding contracts affecting the Property through the Closing Date.
R. At or before the Closing Date, Seller shall have paid or shall have caused to pay in full all outstanding monetary liens affecting the Property, if any.
S. Unless otherwise agreed in writing by the Purchaser as of the Closing Date, Seller shall terminate all Management Contracts, Service Contracts and Broker Leasing Agreements affecting the Property.
T. There has not been, and prior to the Closing Date will not be, discharged, released, generated, treated, stored, disposed of or deposited in, on or under the Property, and to the best of the Seller’s knowledge, the Property is free of and does not contain, any “toxic or hazardous substance”, asbestos, urea formaldehyde insulation, PCBs, radioactive material, flammable explosives, underground storage tanks, or any other hazardous or contaminated substance (collectively, “Contaminants”) prohibited, limited or regulated under the Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, or under any other applicable federal, state or local statutes, regulations or ordinances (collectively the “Environmental Laws”), and there will be are no outstanding bills incurred for labor, services and materials used substances or conditions in making improvements or repairs on the Property on behalf which may support a claim or cause of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As action under any of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Environmental Laws. The Seller has no knowledge or information of any factssuit, circumstances, action or other conditionslegal proceeding arising out of or related to any Environmental Laws with respect to the Property which is pending or threatened before any court, which do agency or would government authority, and Seller has not received any notice that the Property is in any way adversely affect the Property, or the successful operation violation of the PropertyEnvironmental Laws. Notwithstanding the above, except as specifically provided the Purchaser acknowledges that the Property is occupied by medical tenants that may, in the normal course of their business, use substances considered hazardous. Notwithstanding anything contained in this Agreement to Purchaser in writing during the Feasibility Period. All of contrary, the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity set forth in this paragraph 9 shall survive the Closing for a period of one (1) yearyear from and after the Closing Date and then terminate (the “Termination Date”). Purchaser shall not have the right to recover damages from the Seller for any breach of such terminated representations and warranties if Purchaser has not notified Seller in writing of such alleged breach prior to the Termination Date.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (NNN Healthcare/Office REIT, Inc.)
Seller’s Representations and Warranties. As In order to induce Buyer to enter into this Agreement and to consummate the purchase of the Property, Seller hereby represents and warrants to Buyer as of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatas of the Closing as follows:
(a) No person, firm, or (i) Seller is the entity specified in the introductory paragraph to this Agreement and is qualified to do business and in good standing under the laws of the State of Missouri; and (except as may be set forth in ii) Seller has been duly authorized to enter into and perform its obligations under this Agreement, which is valid, binding, and enforceable against Seller in accordance with its terms (subject to general creditor’s rights and equitable principles) has and does not violate any rights in agreement or right judicial order to acquire which Seller is a party or to which it or the Property or any part thereofis subject.
(b) There is not now pending nor, to the best of Seller's knowledge and belief has there been threatened, any investigation, demand, action, suit, or proceeding relating to the Property before or by any agency, court, or other governmental authority. Seller has not received no written any notice from any federal, state, county or municipal governmental authority alleging any fire, health, safety, building, pollution, environmental, zoning or other legal violation with respect to the Property, which has not been entirely corrected in accordance with applicable law. To the best of Xxxxxx’s knowledge and has no knowledge belief, the Property is not in violation of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertyapplicable law.
(c) Seller has received Except as set forth in the hazardous waste and/or environmental studies and reports included in the Due Diligence Documents to be provided to Buyer, to the best of Seller’s knowledge and belief, no written notice and has no knowledge of any governmental assessments concerning hazardous materials have been released at the Property, and none are currently located on the Property which are unpaidnot being stored and maintained in accordance with all applicable laws.
(d) Seller has There are no knowledge of and has received no written notice of any violation of lawspecial assessments, municipal or county ordinances or codestakings, or other legal requirements with respect governmental actions filed, pending or, to the best of Seller’s knowledge and belief, proposed, against the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage There are no option or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from right-of-first-refusal agreements affecting the Property.
. There are no Contracts (f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, exceptAssigned Contracts, if any, for those disclosed ). Seller is not in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Sellerdefault of, and any person for such labor or materials may claim to the best of its knowledge and belief no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for is in default of, and no event or circumstance has occurred which, after notice or opportunity to cure would constitute such a default of, any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearAssigned Contract.
Appears in 1 contract
Seller’s Representations and Warranties. As Buyer has agreed to purchase the Assets as a result of Buyer’s review and inspection of the Effective Date (unless a different date is specified)Assets, and not because of or in reliance upon any representation made by the Seller represents and warrants to Purchaser that:
(a) No person, firmor any principal or employee of Seller, or entity (by any agent of the Seller, except as may be expressly set forth in this Agreement) , and that Buyer has agreed to purchase the Assets in their present condition, unless otherwise specified herein. Notwithstanding the foregoing, Seller represents that, to the best of Seller’s knowledge, Seller is not in possession of any rights in or right information, and no information has come to acquire Seller’s attention that would cause Seller to conclude that: the Property Hotel, or any part thereof.
(b) Seller has received no written notice related facilities or utilities are not in conformance with applicable zoning, building codes or other laws and has no knowledge of regulations; the Hotel is not free from faulty materials and constructed according to sound engineering standards and constructed in a workmanlike manner; or there is any actual or threatened actionenvironmental contamination, litigationhazardous waste, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codesasbestos, or other legal requirements with respect toxic substances, in the Hotel or on the land upon which it is situate in any greater amount or degree than indicated in the environmental studies, if any. Seller further represents that, to the best of Seller’s knowledge, the roof and structure of the Hotel are sound and that all appliances, elevators, heating, air conditioning, plumbing , and other systems are now and will, at the Closing, be in good working order, ordinary wear and tear excepted. As used herein, “Seller’s knowledge” is limited to the actual knowledge of Xxxxxx X. Xxxx and Xxxxx Xxxxxxxx, employees of Seller who are engaged in matters directly related to the Property.
(e) The Property does not violate . Except to the extent of any title insurance policy or environmental laws applicable report or study in the possession of Seller, copies of which Seller has agreed to it and provide to Buyer, in accordance with this Agreement, Seller has not used undertaken any independent investigation or verification of the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) matters described in this Paragraph. Seller is orselling the Assets and Buyer is purchasing the Assets, as of the Closing Date will be“AS-IS, the owner of fee simple, marketable title to the PropertyWHERE-IS” and “WITH ALL FAULTS”.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)Seller hereby represents, Seller represents covenants and warrants to Purchaser thatas follows:
(aA) No personSeller holds fee simple marketable title to the Property, firmand has a good and lawful right to sell the same to Purchaser.
(B) To the knowledge of Seller, or entity (except as proceeds from the sale of the Property are sufficient to pay off any and all sums which may be set forth in this Agreement) has any rights in necessary to discharge all liens, debts, mortgages or right other encumbrances on Seller’s title to acquire the Property and that Seller can and will deliver marketable title in accordance with this agreement at Closing.
(C) To the knowledge of Seller, there are no condemnation or eminent domain proceedings either pending or threatened against the whole or any part thereofof the Property.
(bD) Seller has received no written notice and has no knowledge of any actual or threatened actionunrecorded easements, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agencybuilding and use restrictions, which would may affect the Property.
(cE) To the knowledge of Seller, there are no construction liens, or unpaid contractor’s or materialman’s accounts, which are or may become a construction lien upon the Property.
(F) The Property is currently zoned O&I.
(G) The Property is assessed as a separate parcel, and is not a part of a larger parcel for property tax purposes. There are no pending or threatened tax sales affecting the whole or any part of the Property, nor are there any deferred taxes affecting the Property.
(H) To the knowledge of Seller, the Property has legal access to and from an adjacent public street, road or highway.
(I) Seller has not received no written any notice and has no knowledge of any governmental assessments concerning violation of any federal, state or local laws, rules, regulations or ordinances pertaining to the Property, which are unpaid.
(dJ) To the knowledge of Seller, there are no claims, causes of action or other litigation or proceedings pending or threatened against the Property or affecting Seller’s interest in the Property.
(K) Seller has no knowledge of any underground storage tanks, land fill, hazardous or toxic substances, hazardous or toxic waste, pollutants or contaminants including, without limitation, asbestos, P.C.B.’s, urea formaldehydes and has received no written notice radioactive materials which have been or are presently being generated, stored or deposited at the Property or into any water systems on or below the surface of any violation of law, municipal or county ordinances or codesthe Property, or other legal requirements with respect to are located in any structures on the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fL) Seller is ornot a “foreign person” within the meaning of Internal Revenue Code Section 1445, as of the Closing Date will be, the owner of fee simple, marketable title and Seller qualifies for an exception to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf withholding requirements set forth therein. The representations, warranties, and covenants of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller contained herein shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing and the Closing Date. Whenever the phrase “to the knowledge of Seller” appears herein, such phrase shall refer to the actual knowledge of Xxxxx Xxxxx, without any obligation for a period of one (1) yearinquiry or investigation.
Appears in 1 contract
Samples: Purchase Agreement (Carolina Investment Partners Limited Partnership)
Seller’s Representations and Warranties. As Seller hereby represents, warrants and covenants to and agrees with Buyer as follows:
4.1.1 Seller has the legal right, power and authority to own the Property and to enter into and consummate the transactions contemplated by this Agreement, and this Agreement and all instruments, documents and agreements to be executed by Seller in connection herewith are, or when delivered shall be, duly authorized, executed and delivered by Seller and are, or when delivered shall be, valid, binding and enforceable obligations of Seller.
4.1.2 There are no pending or, to Seller’s knowledge, threatened legal proceedings, administrative actions, or pending governmental investigation of any kind or character adversely affecting the Project or Seller’s interest therein.
4.1.3 To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice from any government authority of any violation of any statute, ordinance, code or regulation with respect to the Project, which violation has not been corrected.
4.1.4 To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice that the Project is in violation of any federal, state and local laws, ordinances and regulations applicable to the Project with respect to “Hazardous Materials” (as defined below), nor to Seller’s knowledge have any Hazardous Materials been or are currently being produced, disposed of, used or stored on or under the Property in violation of applicable law.
4.1.5 Seller is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.
4.1.6 To Seller’s knowledge, the copies of the Effective Date Leases and Contracts delivered to Buyer (unless a different date is specified)or made available to Buyer) for its review are true and correct copies of the Leases and Contracts and are all of the Leases and Contracts affecting the Property. To Seller’s knowledge all of the Leases and Contracts are in full force and effect and there are no defaults by any party thereto under the Leases and Contracts. To Seller’s knowledge, Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire on the Property or any rent roll that is a part thereof.
(b) of the Due Diligence items, Seller has received no written notice and has no knowledge of a current default by the landlord or tenant under any Leases in effect on the Effective Date or of any actual tenant’s intention to vacate its premises or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect discontinue its operations at the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of . Upon the Closing Date, there will be no unpaid bills leasing commissions or liens tenant improvement costs with respect to any of the Leases (except to the extent such tenant improvement costs may arise in the future pursuant to a Lease if, for past due taxes example, a tenant were to renew its Lease and thereby be entitled to tenant improvements).
4.1.7 As used herein, “to Seller’s knowledge” and phrases of similar import means the actual (not constructive and without attribution) conscious knowledge, without undertaking, and without any duty to undertake, any investigation or assessments inquiry, of Xxxxxxx Xxxxxxxxx and Xxxx Van Wyk, which individuals are the employees of Seller (or its affiliates) with the operational/asset disposition responsibility for the Project. It is expressly agreed and understood that in no event shall Buyer be entitled to bring any action(s) for damages or otherwise against such individuals. In the event Seller or Buyer should become aware of any nature, for facts or circumstances prior to the Closing Date that should render any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the ’s representations and warranties of Seller that are limited to Seller’s knowledge no longer accurate, the party first becoming so aware shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless promptly notify the other party for any in writing, and all lossBuyer shall have the right, damagesas its sole and exclusive remedy, costs to terminate this Agreement by written notice to Seller and Escrow Holder delivered within seven (7) days after receipt of Seller’s notice or liabilities incurred due to the inaccuracy thereoffirst becoming aware of such facts, in which case this Agreement shall terminate in accordance with Section 3.3. This indemnity Section 4.1.7 shall survive the Closing for a period supersede any inconsistent provision of one (1) yearthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)a) Seller represents, Seller represents warrants and warrants covenants to Purchaser that:
(ai) No person, firm, or entity (except as may be set forth Seller has complete and full authority to execute this Agreement and to convey to Purchaser good and marketable fee simple title to the Property in accordance with this Agreement.
(ii) has any rights in Seller will not further sell, encumber, convey, assign or right contract to acquire the Property sell, convey, assign, pledge, encumber, lease or sublease all or any part thereofof the Property, nor restrict the use of all or any part of the Property, nor take or cause to be taken any action in conflict with this Agreement at any time between the Effective Date and Closing or the earlier termination of this Agreement pursuant to its terms, or take or permit any action which could result in the imposition of any liens on the Property either before or after Closing. There are no existing rights of any third parties to possess or occupy any part of the Property.
(biii) No rights of first refusal or similar agreements exist in connection with the Property which would in any way interfere with Purchaser’s ability to purchase the Property as provided herein, or which is in any way in contravention of the spirit and intent of this Agreement.
(iv) Seller has received no written notice and has no knowledge of of, nor has Seller received any notice of, any actual or threatened action, litigation, rezoning, condemnation litigation or proceeding by any organization, person, entity individual or governmental agencyagency (including governmental actions under condemnation authority or proceedings similar thereto) against the Property or Seller, nor has any such organization, person, individual or governmental agency communicated to Seller anything which would affect the PropertySeller believes to be a threat of any such action, litigation or proceeding.
(cv) Seller has received During Seller’s ownership of the Property (A) no written notice and has no knowledge of any governmental assessments concerning landfill was deposited on, or taken from, the Property, which are unpaid.
(dB) Seller has no knowledge construction debris or other debris (including, without limitation, rocks, stumps or concrete) was buried upon any of and has received the Property, (C) no written notice dangerous toxic or hazardous pollutants, contaminants, chemicals, wastes, materials or substances, as defined in or governed by the provisions of any federal, state or local law, statute, code, ordinance, regulation, requirement or rule relating thereto (collectively, the “Environmental Regulations”), and also including urea-formaldehyde, polychlorinated biphenyls, asbestos, asbestos-containing materials, nuclear fuel or waste, and petroleum products, or any other waste, material, substance, pollutant or contaminant which would subject the owner of the Property to any damages, penalties or liabilities under any applicable Environmental Regulation (collectively, the “Hazardous Substances”) has ever been located, produced, treated, transported, incorporated, discharged, emitted, released, deposited or disposed of in, upon, under, over or from the Property in violation of lawany environmental Regulation, municipal (D) no threat has existed of a discharge, release or county ordinances emission of a Hazardous Substance upon or codesfrom the Property into the environment, which discharge, release or emission would subject the owner of the Property to any damages, penalties or liabilities under any applicable Environmental Regulation, and (E) the Property was not listed in the United States Environmental Protection Agency’s list of Hazardous Waste Sites or any other legal requirements list of Hazardous Substance sites maintained by any federal, state or local governmental agency. To the best of Seller’s knowledge, none of the foregoing has occurred with respect to the Property prior to the xxxx Xxxxxx became the owner of the Property. Notwithstanding the foregoing, Seller makes no representation or warranty concerning the fill dirt that has been placed on the Property by Purchaser with Seller’s consent.
(evi) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generationAll contractors, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is orsuppliers, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities laborers or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for other persons performing work on the Property have been fully paid by Seller, in full and any person for such labor there are no claims or materials may claim no mechanic's lien or any other liendisputes arising therefrom.
(lb) Seller has no knowledge or information In addition to all other rights and remedies of any factsPurchaser set forth herein, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall defend, indemnify and hold Purchaser, its employees, officers, shareholders, directors, agents, contractors, assigns and successors-in-interest, harmless the other party for from and against any and all claims, actions, loss, damagescost, costs or liabilities incurred due to damage and expense (including reasonable attorneys’ fee actually incurred) resulting from a breach by Seller of any of the inaccuracy thereofrepresentations, warranties and covenants contained in this Agreement. This indemnity The obligations of Seller under this Paragraph shall survive the Closing for a period of one (1) yearClosing.
Appears in 1 contract
Samples: Real Property Purchase Agreement (Paycom Software, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, The execution and delivery of this Agreement has been or entity (except as may will be set forth in this Agreement) has any rights in or right to acquire at the Property or any part thereoftime of Closing duly authorized by all necessary and appropriate action of Seller.
(b) No consent or approval of any person, entity, or governmental authority is required with respect to the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated hereby or the performance by Seller of its obligations under this Agreement, or the continued operation of the Land as the Range, except for such consents as shall be obtained by Seller prior to the Closing.
(c) To the best of Seller’s knowledge, all Permits necessary for the operation of the Range are set forth in Exhibit E to this Agreement and in full force and effect. However, not all permits are transferable. Exhibit E will distinguish the transferable permits. Except as otherwise disclosed to Purchaser in writing, Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge material violations of any governmental assessments concerning Permit. Copies of the Property, which are unpaidPermits containing all material provisions thereof will be delivered to Purchaser within ten (10) days from the Effective Date.
(d) Seller has no knowledge of and has not received no any written notice of, and there are no material violations of any violation laws, ordinances, orders or regulations (“Laws”) of law, municipal governmental or county ordinances or codes, or other legal requirements quasi-governmental authorities with respect to the PropertyTransferred Property (including, without limitation, those related to Hazardous Waste Laws, environmental, zoning, land-use, labor or employment matters).
(e) The Property does Seller is not violate environmental laws applicable currently a party to it and any litigation or other proceedings which, if, adversely determined, would have a material adverse effect on the ownership or operation of the Transferred Property, or the financial condition or results of operations of the Transferred Property, nor has Seller has not used the Property for the generation, storage received any written notice that any such litigation or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Propertyother proceedings are to be instituted.
(f) Seller is or, as has no employees. All personnel needs are met through use of the Closing Date will be, the owner of fee simple, marketable title to the Propertysubcontracts.
(g) None Within ten (10) days from the Effective Date, Seller will provide to Purchaser all existing copies, in Seller’s possession or control, of all bills for real estate and personal property taxes and assessments for the lots are located in a flood plain areacurrent tax year and the two (2) immediately preceding tax years.
(h) No improvements or repairs have been made or will be made to the Property on behalf Seller is not aware of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs any Hazardous Substances on the Property on behalf of Seller Land or for services of architects, surveyors or engineers engaged in the buildings to be leased by SellerPurchaser.
(i) As Seller has good, valid and marketable title free to the Transferred Property which is free and clear of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closingall encumbrances.
(j) Seller has made no representations timely filed all material returns and reports, and paid all taxes with respect to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Transferred Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed Seller warrants that the Equipment is in good operating condition and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lienrepair.
(l) Seller has no knowledge not made any arrangement with anyone for a broker or information finder fee arising out of any factsthis Agreement.
(m) Seller represents that the Transferred Property includes all the assets, circumstancesrights, or other conditionsproperties and contracts necessary to the continued conduct of the Range by Purchaser substantially in the manner as it is currently conducted by the Seller.
(n) Seller is a duly organized an validly existing corporation, which do or would is in any way adversely affect good standing in the Property, or State of South Carolina and has full power to enter into this Agreement and to perform its obligations under this Agreement.
(o) The Permits in Exhibit E are the successful only permits required for operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearRange.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a) No personSeller is a limited liability company, firmduly organized, validly existing, and in good standing under the laws of the State of Arizona, with full right, power, and authority to convey to Buyer all of Seller's right, title and interest in and to the Property, and to enter into and otherwise perform and comply with the terms of this Agreement;
(b) this Agreement and all documents executed by Seller that are to be delivered to Buyer at the Closing are, or entity at the time of Closing will be, duly authorized, executed and delivered by Seller; and
(except as may c) this Agreement and all documents executed by Seller that are to be set forth delivered to Buyer at Closing are, or at the time of Closing will be, legal, valid and binding obligations of Seller, and do not, and at the time of Closing will not, violate any provisions of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject.
(d) Other than the Property, there are no material items, tangible or intangible, real or personal, owned by Seller or any affiliate of Seller which (i) are now being, or have heretofore been, used exclusively in this Agreement) has any rights in or right to acquire conjunction with the Property or any part portion thereof, and (ii) are reasonably necessary for the present use thereof, other than items that have been replaced by Seller by an article of equal suitability and value.
(be) To Seller's knowledge, all of the Property, and the existing uses of the Property, are in compliance with all applicable laws, ordinances, rules, regulations, and requirements of all governmental authorities having jurisdiction thereof, including, without limitation, those pertaining to zoning, land use, subdivision, building, safety, fire and health.
(f) Seller has not been served with a summons or other applicable written service of notice advising Seller of any action, suit, proceeding or investigation pending, nor to Seller's knowledge, is there any action, suit, proceeding or investigation pending or threatened, before any agency, court, or other governmental authority which relates to Seller or the ownership, maintenance, or operation of the Property.
(g) Seller has not been served with written notice of, nor to Seller's knowledge is there, any condemnation or eminent domain proceeding affecting the Property or any portion thereof currently pending or threatened.
(h) Seller has received no written notice of any, and has no to Seller's knowledge there is no, failure of the Seller to comply with any actual or threatened actionapplicable governmental requirements in respect of the use, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect occupation and construction of the Property, including but not limited to environmental, zoning, platting and other land use requirements which have not been heretofore corrected to the satisfaction of the appropriate governmental authority, and Seller has received no written notice of any, and to Seller's knowledge there are no, violations or investigations relating to any such governmental requirement.
(ci) Seller has received no written notice and has no knowledge of any governmental assessments concerning default or breach by the PropertySeller under any covenants, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawconditions, municipal or county ordinances or codesrestrictions, rights-of-way, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date easements which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.the
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pan Pacific Retail Properties Inc)
Seller’s Representations and Warranties. As of the Effective date hereof and as of the Closing Date (unless a different date is specifiedas evidenced by Seller’s downdate certificate to be provided at Closing), Seller represents represents, warrants and warrants covenants to Purchaser that:
(a) No person, firm, or entity (except as may There are and there will be set forth no parties in this Agreement) has possession of any rights in or right to acquire portion of the Property as lessees, and no other party has been granted an oral or written license, lease, option, purchase agreement or other right pertaining to the use, purchase or possession of any portion of the Property. A true, complete and correct copy of any Contract affecting the Property and any amendments thereto have been or will be furnished to Purchaser within five (5) days after the Effective Date as part thereofof the Due Diligence Materials. Such Contracts, if any are valid and binding in accordance with their respective terms and conditions, are in full force and effect, and have no uncured breach or default by any party. No off-sets or defenses are available to any party under any Contract. All Contracts are cancellable upon not more than thirty (30) days prior written notice. There are no leasing brokerage agreements, leasing commission agreements or other agreements providing for the payment of any amounts, and no commissions due, for leasing activities with respect to the Property. Purchaser shall have no liability for (and Seller hereby indemnifies and holds harmless Purchaser from and against any claim for) any such leasing commissions.
(b) The Seller has not received no written notice and has no knowledge of any actual default (nor is there any default) under any note or threatened actiondeed of trust related to or secured by the Property. The execution and delivery of this Agreement, litigationthe consummation of the transaction herein contemplated and the compliance with the terms and provisions hereof will not conflict with or (with or without notice or the passage of time or both) result in a breach of any of the terms or provisions of, rezoningor constitute a default under, condemnation any indenture, mortgage, loan agreement or proceeding instrument to which the Seller is a party or by which the Seller or the Property is bound, any personapplicable regulation or any judgment, entity order or governmental agency, which would affect decree of any court having jurisdiction over the Seller or the Property.
(c) The Seller has not received no written notice and has no knowledge any notice, nor is the Seller aware, of any governmental assessments concerning violation of any ordinance, regulation, law, statute, rule or restriction relating to the Property, which are unpaid.
(d) Seller has There are no knowledge attachments, executions, assignments for the benefit of and has received no written notice of any violation of law, municipal or county ordinances or codescreditors, or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other legal requirements with respect to litigation contemplated by or pending or threatened against the Seller or the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used been duly organized and is validly existing under the laws of the State of Florida. Seller has the full right and authority to enter into this Agreement and to transfer all of the Property for to be conveyed by Seller pursuant hereto and to consummate or cause to be consummated the generationtransactions contemplated herein to be made by Seller. The person signing this Agreement on behalf of Seller is authorized to do so. This Agreement constitutes, storage and all agreements and documents contemplated hereby (when executed and delivered pursuant hereto) will constitute, the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms. No other signatures or handling of hazardous materials approvals are required to make this Agreement fully enforceable by the Purchaser with respect to the Seller or contaminants and there has been no release of a hazardous substance on or from the Property. This Agreement constitutes, and all agreements and documents contemplated hereby (when executed and delivered pursuant hereto) will constitute, the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms.
(f) The Seller has and will convey to the Purchaser good, marketable and indefeasible title in fee simple to the Property, subject only to the Permitted Exceptions.
(g) There is no pending or threatened condemnation or similar proceeding or assessment affecting the Property or any part thereof, nor to the knowledge of the Seller is orany such proceeding or assessment contemplated by any governmental authority. There will be no claim against the Property or Purchaser for or on account of work done, as of materials furnished, and utilities supplied to the Property prior to the Closing Date will beDate. To Seller’s knowledge, there are no public plans or proposals for changes in road grade, access, or other municipal improvements which would adversely affect the Property or result in any assessment; and no ordinance authorizing improvements, the owner cost of fee simplewhich might be assessed against Purchaser or the Property, marketable title is pending.
(h) Seller has not entered into any agreement to dispose of its interest in the Property or any part thereof, except for this Agreement.
(i) Seller is not a party to any litigation which is still pending, and knows of no threatened litigation, affecting or relating to the Property.
(gj) None Neither the Seller, nor to Seller’s knowledge, any other party has ever caused or permitted any “hazardous material” (as hereinafter defined) to be placed, held, located, or disposed of the lots are located in a flood plain area.
(h) No improvements on, under, or repairs have been made or will be made to at the Property on behalf or any part thereof in forms or concentrations which violate applicable laws and regulations, and, to Seller’s knowledge, neither the Property nor any part thereof has ever been used as a dump or storage site (whether permanent or temporary) for any hazardous material. As used herein, “hazardous material” means and includes any hazardous, toxic, or dangerous waste, substance, or material defined as such in, or for purposes of, the Comprehensive Environmental Response, Compensation Liability Act (42 U.S.C. Section 9601, et seq., as amended) or any other “super fund” or “super lien” law or any other Federal, State, or local statute, or law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability for standards of the Seller during the 90 days immediately preceding the Closing Date which will conduct concerning any substance or material, as presently in effect. The Property does not be paid for in full as of the Closing Date, currently contain any underground or aboveground storage tanks and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs any storage tanks previously located on the Property on behalf (whether above ground or below ground) have been removed in accordance with the requirements of Seller all applicable laws with “clean closure” or for services “no further action” letter(s), or comparable letters, issued by the State of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated Florida in connection with Closing.
(j) therewith. Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to hereby indemnifies and holds harmless Purchaser during the Feasibility Period.
(k) All labor performed from and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for against any and all loss, damagesexpense (including without limitation reasonable attorney fees), costs liability, cost, claim, demand, action, cause of action and suit arising out of or liabilities incurred due in any way related to the inaccuracy thereof. This indemnity shall survive the Closing for a period any breach of one (1) yearany representation, warranty, covenant or agreement of Seller in this Agreement.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents --------------------------------------- and warrants to Purchaser that:
(a) No person1. Seller has full right, firmpower, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or entity (except as may be set forth the taking of any other actions with respect to, any third parties. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in this Agreement) has any rights in or right to acquire the Property or any part thereofaccordance with its terms.
(b) 2. To Seller's current, actual knowledge, there are no actions, suits, claims, assessments, or proceedings pending or threatened that could affect the ownership, operation, or maintenance of the Property, the zoning classification thereof, or Seller's ability to perform hereunder, nor are there any special assessment proceedings pending or affecting the Property.
3. The Improvements have been constructed in a good and workmanlike manner, free from defects in workmanship and material and, to the best of Seller's current, actual knowledge, do not require any repair or replacement other than minor, routine maintenance not aggregating in excess of $5,000, other than repairs to the parking lot, and have been constructed and are being occupied, maintained, and operated in compliance with all applicable laws, regulations, insurance requirements, contracts, leases, permits, licenses, ordinances, restrictions, building setback lines, covenants, reservations, and easements, and Seller has received no notice, written notice and has no knowledge of any actual or threatened actionoral, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of claiming any violation of lawany of the same or requesting or requiring the performance of any repairs, municipal or county ordinances or codesalterations, or other legal requirements work in order to so comply. A certificate of occupancy has been duly issued with regard to the Improvements.
4. Seller is the owner of all Personalty free and clear of all liens, claims, or encumbrances except liens and security interests that will be released at or before Closing and, to Seller's current, actual knowledge, all items of Personalty are in good working order and condition.
5. All bills and other payments due with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generationownership, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Dateoperation, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf maintenance of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by or will be paid prior to Closing in the ordinary course of business.
6. During the period of Seller's ownership, the Property, and to the best of Seller's current, actual knowledge, any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller adjacent property, has no knowledge or information not been the site of any factsactivity that would violate any past or present environmental law or regulation of any governmental body or agency having jurisdiction over the Property. Solid waste, circumstancespetroleum, or other conditions, which do or would in any way adversely affect petroleum products have not been handled by Seller on the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereofbest of Seller's current, actual knowledge, any adjacent property, such that they may have leaked or spilled onto the Property or contaminated the Property and, to Seller's current, actual knowledge, neither the Property nor any adjacent property contains any Hazardous Materials. This indemnity shall survive "Hazardous Materials" means any petroleum ------------------- products, flammables, explosives, radioactive materials, asbestos, radon, or other hazardous waste including without limitation substances defined as "hazardous substances," "hazardous materials", "toxic substances," in the Closing for a period Comprehensive Environmental Response, Compensation and Liability Act of one (1) year1980, the Hazardous Materials Transportation Act, and the Resources Conversation and Recovery Act, or any other law regulating the discharge of materials into, or otherwise pertaining to, the environment.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Homegate Hospitality Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)By signing this Unit Transfer Agreement and Application Form, Seller represents and warrants to Purchaser thatAbsolute Energy that he, she or it:
(a) No persona. Has received all financial and other information about Absolute Energy that he, firmshe or it deems necessary or appropriate to form a decision regarding the sale and transfer of units hereunder;
b. Has had an opportunity to obtain, and has received, any additional information about Absolute Energy, and has had an opportunity to ask such questions of, and receive answers from, Absolute Energy or an authorized agent or representative of Absolute Energy, to the extent Seller deems necessary or appropriate to form a decision regarding the sale and transfer of units hereunder;
c. As a result, has sufficient knowledge and information about the business, management, financial affairs and future prospects of Absolute Energy he, she or it deems necessary or appropriate to make a decision regarding the sale and transfer of units hereunder;
d. Has such knowledge and experience in financial and business matters that he, she or it is capable of evaluating the merits and risks of the purchase and transfer of units hereunder or has obtained, to the extent he, she or it deems necessary, his, her, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements its own professional advice with respect to the Property.decision to purchase and transfer units hereunder;
(e) The Property does not violate environmental laws applicable to it and Seller has not used e. Understands the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as effect of the Closing Date will beallocation provisions and payment of distributions provisions of this TAA Form, including those set forth in Section 4 of Paragraph D. above;
f. Understands and agrees that Absolute Energy has made and makes no representation or warranty to Seller regarding the owner of fee simple, marketable title to the Property.
(g) None fairness or adequacy of the lots are located in a flood plain area.
(h) No improvements or repairs purchase price of the units to be transferred hereunder, and that the negotiation and agreement to transfer the units have been made solely by Seller without the assistance or will be made involvement of Absolute Energy; and
g. Agrees to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold Absolute Energy harmless the other party for any and all damages, loss, damagescost, costs or liabilities incurred due liability (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from the transfer of units from Seller to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearBuyer.
Appears in 1 contract
Samples: Unit Transfer Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:as follows (which representations and warranties shall be true and correct as of the date hereof and as of the Closing Date):
(a) No Seller owns a fee simple interest in the Land and the Improvements and at Closing will convey or cause to be conveyed to Purchaser marketable fee simple title to the Property subject only to the Permitted Exceptions, in accordance with Section 4.1 hereof. To the knowledge of Seller, all Personal Property located on the Land is owned by Seller.
(b) Seller is duly organized and legally existing under the laws of the State of Delaware and is authorized to transact business in the State of Georgia. The execution and delivery of, and Xxxxxx's performance under, this Agreement are within Seller's powers and have been duly authorized by all requisite corporate action. The person executing this Agreement on behalf of Xxxxxx has the authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable in accordance with its terms. Performance of this Agreement will not result in any breach of, or constitute any default under, or result in the imposition of any lien or encumbrance upon the Property under, any agreement or other instrument to which Seller is a party or by which Seller or the Property might be bound.
(c) To the knowledge of Seller, there are no existing or pending litigation actions, or claims, with respect to any aspect of the Property nor have any such actions, suits, proceedings or claims been threatened or asserted.
(d) Seller has not received written notice of, nor are there, to the knowledge of Seller, any facts or circumstances which could give rise to any pending liens or special assessments against any of the Property by any governmental authority.
(e) To the knowledge of Seller, no tenant or other occupant and no other person, firm, corporation or other entity (except as may be set forth in this Agreement) has any rights in right or right option to acquire the Property, or any part thereof, from Seller.
(f) To Seller’s knowledge, Seller has not received, with respect to the Property, any written notice from any insurance company, governmental agency or any other party of
(i) any condition, defect, or inadequacy affecting the Property that, if not corrected, would result in termination of insurance coverage or increase its cost, (ii) any violation of any restrictive covenant or deed restriction affecting the Property and any building codes and/or zoning ordinances or other Governmental Requirements (as defined in Section 13.1 (b) hereof), (iii) any pending or threatened condemnation proceedings, and (iv) any proceedings that could or would cause the change, redefinition, or other modification of the zoning classification, or of other legal requirements, applicable to the Property or any part thereof.
(bg) To Seller’s knowledge, there are no unpaid charges, debts, liabilities, claims or obligations arising from the construction, occupancy, ownership, use or operation of the Property which could give rise to any mechanic's or materialmen's or other statutory liens against any of the Property which will not be paid by Seller at the Closing, or for which Purchaser will be responsible.
(h) To the knowledge of Seller, without inquiry, the Property is in compliance with all restrictive covenants and deed restrictions affecting the Property.
(i) To Seller’s knowledge, all water, sewer, electric, natural gas, telephone, drainage facilities and all other utilities required for the current use of the Property are installed to the Property, are connected with valid permits, comply with all Governmental Requirements and are adequate to service the Property for its current use.
(j) Seller has received no written notice and has no knowledge of of, and, to Seller’s knowledge, there are not, any actual plans to widen, modify or threatened action, litigation, rezoning, condemnation realign any street or proceeding by any person, entity or governmental agency, which highway that would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fk) Seller is ornot a "foreign person" within the meaning of Sections 1445 and 7701 the Internal Revenue Code of 1986, as of the Closing Date will beamended (hereinafter, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien"Code").
(l) Seller has no To the knowledge or information of Seller, the Property is not within any facts, circumstances, or other conditions, which do or would in any way adversely affect area determined by the Property, or Department of Housing and Urban Development to be flood prone under the successful operation Federal Flood Disaster Protection Act of 1973.
(m) During the time of Seller’s ownership of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All Seller has not received written notice of the representations and warranties violation of Seller shall be true and correct as any Hazardous Materials Laws or of the Closing Date and Seller shall re-certify the representations and warranties discharge of any Hazardous Materials on the Closing Date and shall indemnify and hold harmless Property in violation of Hazardous Materials Laws. To Seller’s knowledge without investigation, no portion of the Property is presently being used for the disposal, storage, treatment, processing or other party for handling of Hazardous Materials in violation of Hazardous Materials Laws nor is there any and all lossHazardous Material Contamination in violation of Hazardous Materials Laws. To Seller's knowledge without investigation, damages, costs there are no underground storage tanks located on or liabilities incurred due to under the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearProperty.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As Seller hereby makes the --------------------------------------- following representations and warranties to Buyer, each of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatwhich shall be deemed material:
(a) No personSeller has good, firmindefeasible and marketable fee simple title to the Property, or entity (except as may be set forth in this Agreement) has any rights in or right and, at the time of each Closing with respect to acquire the portion of the Property then being acquired, there are no mechanics' liens, contractors' claims, unpaid bills for material or labor pertaining to the Property, nor any part thereofother similar liens which might adversely affect Seller's title to the Property, except for current ad valorem real estate taxes and rollback taxes.
(b) Seller has received There are no written notice and has no knowledge tenants or other persons or entities on the Property which will have a right of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect possession beyond the Propertydate of each Closing.
(c) To the best of Seller's knowledge without investigation, there are no pending, threatened or contemplated condemnation actions involving all or any portion of the Property and Seller has received no written notice and has no knowledge of any such action. If, between the Effective Date and any Closing, any portion of the Property is subject to pending, threatened or contemplated condemnation action by any governmental assessments agency, Buyer shall have the option, in Buyer's sole discretion, of declaring this Agreement null and void. Seller shall notify Buyer within five (5) business days of receipt of any information concerning any such condemnation action, and in turn Buyer must elect within thirty (30) business days from the Propertydate of receipt of the said information whether to (i) terminate Buyer's election as to the applicable portion of the Property or (ii) proceed to close the transaction and receive an assignment of all of Seller's right, which are unpaidtitle and interest in and to any condemnation award. If Buyer elects (ii), Seller shall fully cooperate, at no expense however to Seller, with Xxxxx in any condemnation action.
(d) Seller has As of each Closing, no knowledge of and has received no written notice of any violation of lawmaintenance, municipal or county ordinances or codesmanagement, service, supply, employment or other legal requirements contracts shall exist with respect to the PropertyProperty acquired at such Closing.
(e) The Property does not violate environmental laws applicable to it and From the Effective Date through each Closing, Seller has not used shall:
(1) Maintain the Property in the same condition as presently exists, except for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As reasonable wear and tear (ii) construction and installation of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on water and sewer lines through the Property of any kind against the Property, other than those items which are pro-rated pursuant to easements as described in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed Paragraph 6 herein and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.-----------
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer that as of the date of this Agreement and as of the Closing Date:
(a) No person8.1 Seller is duly organized, firmvalidly existing, or entity (except as may be set forth and in good standing under the laws of the state of its formation;
8.2 Seller has the full power and authority to execute, deliver and perform its obligations under this Agreement;
8.3 The execution, delivery and performance of this Agreement by Seller (i) are within Seller's corporate, partnership, limited liability or other applicable powers, and (ii) have been duly authorized by all necessary corporate, partnership, limited liability or other applicable action;
8.4 There is no litigation pending against Seller that would adversely affect or interfere with Seller's ability to perform its obligations under this Agreement;
8.5 There are no Contracts other than those listed on Schedule 1 hereto, neither of which shall be assigned to or assumed by Buyer at Closing, it being understood that these obligations shall remain with Seller;
8.6 There are no Leases executed by Seller other than those listed on Schedule 2 hereto;
8.7 There is no Personal Property or FF&E owned by Seller located on or at the Real Property or Building;
8.8 Seller employs no employees at the Real Property or Building other than as listed on Schedule 4, and same shall be either terminated or reassigned effective as of the Closing Date;
8.9 Seller has no employees and is not a signatory to any rights in collective bargaining or right related agreements covering the Real Property or Building;
8.10 All documentation relating to acquire the Property or any part thereof.is located at the Property Manager's office and is available for Buyer's review in accordance with Section 3.3 hereof;
(b) 8.11 Seller has received no written notice and has of, nor to Seller's knowledge do there exist, any pending or threatened condemnation or eminent domain proceedings that would affect all or any portion of the Property;
8.12 There are no knowledge judgments, orders or decrees of any actual kind against Seller unpaid or unsatisfied of record. There are no actions, suits or proceedings pending or threatened action, litigation, rezoning, condemnation against Seller or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of at law or in equity, before any violation of lawfederal, state, municipal or county ordinances governmental department, court, commission, board, bureau, agency or codesinstrumentality which would, if adversely determined, materially adversely affect title to any of the Property;
8.13 Seller has not received from any insurance company or other legal requirements board of fire underwriters written notice requesting the performance of any work or alterations with respect to the Property.
(e) The Real Property does that has not violate environmental laws been performed or that resulted in an increase in insurance rates applicable to it and Seller has the Real Property as a result of work which was not used the Property for the generation, storage so performed; and
8.14 There is no right or handling option in favor of hazardous materials any person or contaminants and there has been no release party to purchase all or any portion of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective date hereof and as of the Closing Date (unless a different date is specifiedas evidenced by Seller’s downdate certificate to be provided at Closing), Seller represents represents, warrants and warrants covenants to Purchaser that:
(a) No personThere are and there will be no parties in possession of any portion of the Property as lessees, firmand no other party has been granted an oral or written license, lease, option, purchase agreement or entity other right pertaining to the use, purchase or possession of any portion of the Property, other than tenants in possession under the Leases (defined hereafter). True, complete and correct copies of all leases affecting the Property and any amendments thereto (collectively, the “Leases”) have been or will be furnished to Purchaser within seven (7) days after the Effective Date as part of the Due Diligence Materials, together with true, correct and complete copies of any service, maintenance or other contracts or agreements with third parties relating to or affecting the Property (the “Contracts”). A schedule and rent roll of all Leases and amendments is attached hereto as Exhibit C (“Lease Schedule”) and incorporated herein by reference. Such Leases and Contracts are valid and binding in accordance with their respective terms and conditions, are in full force and effect, and, to Seller’s knowledge, have no uncured breach or default by any party except as may be disclosed on Exhibit C. To Seller’s knowledge, no off-sets or defenses are available to any party under the Leases or Contracts. All Contracts are cancellable upon not more than thirty (30) days prior written notice. No rents have been collected more than thirty (30) days in advance and no tenant is entitled to any allowance for decoration, redecoration or other improvements under any of the Leases (a “TI Allowance”), except as specifically set forth on Exhibit C. There are no leasing brokerage agreements, leasing commission agreements or other agreements providing for the payment of any amounts, and no commissions due, for leasing activities with respect to the Property except as set forth in this Agreementthe Leases or on Exhibit C. Purchaser shall have no liability for (and Seller hereby indemnifies Purchaser against any claim for) has any rights such leasing commissions and any TI Allowance with respect to the Leases except to the extent (i) expressly allocated to Purchaser on Exhibit C, or (ii) expressly provided for in or right to acquire the Property any current Lease or any part thereofLease entered into after the Effective Date that is approved by Purchaser pursuant to Section 16 below.
(b) The Seller has not received no written notice and has no of any default (nor does Seller have any knowledge of any actual default) under any note or threatened actiondeed of trust related to or secured by the Property. The execution and delivery of this Agreement, litigationthe consummation of the transaction herein contemplated and the compliance with the terms and provisions hereof will not conflict with or (with or without notice or the passage of time or both) result in a breach of any of the terms or provisions of, rezoningor constitute a default under, condemnation any indenture, mortgage, loan agreement or proceeding instrument to which the Seller is a party or by which the Seller or the Property is bound, any personapplicable regulation or any judgment, entity order or governmental agency, which would affect decree of any court having jurisdiction over the Seller or the Property.
(c) The Seller has not received no any written notice and has no knowledge notice, nor is the Seller aware, of any governmental assessments concerning violation of any ordinance, regulation, law, statute, rule or restriction relating to the Property, which are unpaid.
(d) Seller has There are no knowledge attachments, executions, assignments for the benefit of and has received no written notice of any violation of law, municipal or county ordinances or codescreditors, or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other legal requirements with respect to litigation contemplated by or pending or threatened against the Seller or the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used been duly organized and is validly existing under the laws of the State of Illinois. Seller has the full right and authority to enter into this Agreement and to transfer all of the Property for to be conveyed by Seller pursuant hereto and to consummate or cause to be consummated the generationtransactions contemplated herein to be made by Seller. The person signing this Agreement on behalf of Seller is authorized to do so. This Agreement constitutes, storage and all agreements and documents contemplated hereby (when executed and delivered pursuant hereto) will constitute, the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms. No other signatures or handling of hazardous materials approvals are required to make this Agreement fully enforceable by the Purchaser with respect to the Seller or contaminants and there has been no release of a hazardous substance on or from the Property. This Agreement constitutes, and all agreements and documents contemplated hereby (when executed and delivered pursuant hereto) will constitute, the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms.
(f) The Seller has and will convey to the Purchaser good, marketable and indefeasible title in fee simple to the Property, subject only to the Permitted Exceptions.
(g) There is no pending or threatened condemnation or similar proceeding or assessment affecting the Property or any part thereof, nor to the knowledge of the Seller is orany such proceeding or assessment contemplated by any governmental authority. There will be no claim against the Property or Purchaser for or on account of work done, as materials furnished, and utilities supplied to the Property prior to the Closing Date. To Seller’s knowledge, there are no public plans or proposals for changes in road grade, access, or other municipal improvements which would adversely affect the Property or result in any assessment; and, to Seller’s knowledge, no ordinance authorizing improvements, the cost of which might be assessed against Purchaser or the Property, is pending.
(h) No portion of the Closing Date will beProperty is within the area determined to be within any flood hazard areas, including the owner 100-year flood plain on the Flood Insurance Rate Map published by the Federal Emergency Management Agency and/or by the United States Army Corps of fee simpleEngineers and/or Lake County and/or the State of Illinois, marketable title except as may be shown on the Survey.
(i) Seller has not entered into any agreement to dispose of its interest in the Property or any part thereof, except for this Agreement.
(j) Seller is not a party to any litigation which is still pending, and knows of no threatened litigation, affecting or relating to the Property.
(gk) None Neither the Seller, nor to Seller’s knowledge, any other party has ever caused or permitted any “hazardous material” (as hereinafter defined) to be placed, held, located, or disposed of the lots are located in a flood plain area.
(h) No improvements on, under, or repairs have been made or will be made to at the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date or any part thereof in forms or concentrations which will not be paid for in full as of the Closing Dateviolate applicable laws and regulations, and there will be no outstanding bills incurred for laborand, services and materials used in making improvements or repairs on to Seller’s knowledge, neither the Property on behalf of Seller nor any part thereof has ever been used as a dump or storage site (whether permanent or temporary) for any hazardous material. As used herein, “hazardous material” means and includes any hazardous, toxic, or dangerous waste, substance, or material defined as such in, or for services of architectspurposes of, surveyors or engineers engaged by Sellerthe Comprehensive Environmental Response, Compensation Liability Act (42 U.S.C. Section 9601, et seq.
(i, as amended) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other “super fund” or “super lien.
(l) Seller has no knowledge ” law or information of any factsother Federal, circumstancesState, or other conditions, which do or would in any way adversely affect the Propertylocal statute, or the successful operation law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability for standards of the Propertyconduct concerning any substance or material, except as specifically provided to presently in effect. The Property does not currently contain any underground storage tanks. Seller hereby indemnifies and holds harmless Purchaser in writing during the Feasibility Period. All of the representations from and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for against any and all loss, damagesexpense (including without limitation reasonable attorney fees), costs liability, cost, claim, demand, action, cause of action and suit arising out of or liabilities incurred due in any way related to the inaccuracy thereof. This indemnity shall survive the Closing for a period any breach of one (1) yearany representation, warranty, covenant or agreement of Seller in this Agreement.
Appears in 1 contract
Seller’s Representations and Warranties. As Except as otherwise set forth in the a disclosure schedule attached hereto, Seller hereby represents and warrants to Buyer that as of the Effective Date (unless a different and, subject to Section 7(b) below, as of the date is specified), Seller represents and warrants to Purchaser thatof the Closing:
(ai) No personother person or entity has a contract or option to purchase, firmletter of intent, right of first refusal or first offer, or entity (except as may be set forth in this Agreement) has any similar rights in or right with respect to acquire the Property or any part thereofthat is now outstanding.
(bii) Seller has the right to transfer fee simple ownership to the Property to Buyer.
(iii) To Seller’s knowledge, Sxxxxx has received no notice from any governmental authority with jurisdiction over the Property of any current violation by the Property of any laws or regulations applicable to the Property. Seller shall immediately provide Buyer with a copy of any such notices received after the Effective Date.
(iv) There are no leases, licenses, or agreements for occupancy currently in effect with respect to all or any portion of the Property.
(v) There are no contracts or agreements relating to the ownership, operation and maintenance of the Property that will survive the Closing, other than the Assumed Contracts. To Seller’s knowledge, there are no defaults under or with respect to the Assumed Contracts.
(vi) There is no litigation pending or threatened against Seller that arises out of Seller’s ownership or operation of the Property.
(vii) To Seller’s knowledge, no condemnation or eminent domain proceedings are pending or threatened against the Property.
(viii) The Due Diligence Items delivered to Buyer are true and complete copies of the same documents (originals or copies) that are in Seller’s possession and used in connection with the operation and management of the Property. None of the Due Diligence Items provided to Buyer has been amended, modified or terminated except as disclosed in writing to Buyer.
(ix) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal Environmental Laws or county ordinances the presence or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance Hazardous Materials on or from the Property.
(f) Seller is or, Real Property in violation of Environmental Laws except as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located may be disclosed in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes any environmental reports or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners included in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility PeriodDue Diligence Items. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.“
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)In addition to other representations herein, Seller represents and warrants to Purchaser Buyer now and as of the date of closing that:
(a) No person8.1 Seller has full power and authority to execute this Agreement and perform Seller's obligations and duties hereunder;
8.2 The Property is not subject to any leases, firmtenancies or rights of persons in possession;
8.3 Neither the Property nor the sale of the Property violates any applicable statute, ordinance or entity (except as may be set forth in this Agreement) has regulation, nor any rights in order of any court or right any governmental authority or agency, pertaining to acquire the Property or the use occupancy or condition thereof;
8.4 Seller is unaware of any part thereof.material defect in the Property;
(b) 8.5 All persons and entities supplying labor, materials and equipment to the Property have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for public improvements against the Property and Seller is not aware of any local improvement district or other taxing authority having jurisdiction over the Property in the process of formation;
8.7 The Property has legal access to all streets adjoining the Property;
8.8 Seller has received no written notice good and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.;
(g) None 8.9 Seller is not a "foreign person" for purposes of Section 1445 of the lots are located Internal Revenue Code. Prior to closing, Seller shall execute and deliver to Closing Agent an affidavit in a flood plain area.order to meet the Foreign Investment in Real Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
(h) No improvements or repairs have been made or will be made to 8.10 Seller has not received notification of any kind from any agency suggesting that the Property on behalf is or may be targeted for a Superfund or similar type of cleanup. To the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as best of the Closing DateSeller's knowledge, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on neither the Property on behalf of Seller nor any portion thereof is or for services of architects, surveyors or engineers engaged by Seller.
has been used (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit storage, disposal or discharge of oil, solvents, fuel, chemicals or any type of toxic or dangerous or hazardous waste or substance, (ii) as a landfill or waste disposal site, and (iii) does not contain any underground storage tanks. Seller at its sole cost and expense shall within ninety (90) calendar days after Closing complete the Seller on demolition and removal from the Property of the vacant former Ernst Hardware building and garden yard shown on Exhibit A (the "Demolition Site") including but not limited to all concrete slabs, footings, foundations, underground utilities and any kind against other related items. Seller at its own cost and expense shall provide an environmentally clean Demolition Site with certifications by the Propertyapplicable local, state and federal agencies including but not limited to the removal of asbestos, all underground storage tanks, pipelines, all contaminated soils and any other than those toxic, hazardous or contaminated materials, wastes and other related items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed governed by environmental protection and hazardous and toxic wastes and materials supplied for the Property have been fully paid by Sellerlaws, statutes, regulations, ordinances and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) requirements. Seller has no knowledge or information of any factsagrees to indemnify, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify defend and hold Buyer harmless the other party for from and against any and all loss, damagesdamage, claims, penalties, liability, suits, costs and expenses (including, without limitation, reasonable attorneys' fees) and also including without limitation, costs of remedial action or liabilities cleanup, suffered or incurred due by Buyer arising out of or related to any such use of the Property, or portion thereof, occurring prior to the inaccuracy thereof. This indemnity shall survive conveyance to Buyer or as a result of Seller's failure to clean up the Closing for a period of one (1) yearDemolition Site and provide the required certifications.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Eagle Hardware & Garden Inc/Wa/)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:that as of the date of this Agreement (unless otherwise stated below):
(ai) No personSeller is a duly formed and validly existing limited partnership organized under the laws of the Commonwealth of Pennsylvania. Seller is authorized to own and convey title to land in Pennsylvania.
(ii) Seller has the full legal right, firmpower and authority to execute and deliver this Agreement and all documents now or hereafter to be executed by it pursuant hereto (collectively, the "Seller's Documents"), to consummate the transaction contemplated in this Agreement, and to perform its obligations under this Agreement and the Seller's Documents. The person signing this Agreement on behalf of Seller is authorized to do so.
(iii) There is no threatened or pending litigation, nor has Seller been served with any litigation which is still pending with respect to the Property that would adversely affect Seller's ability to perform its obligations under this Agreement, or entity that would affect title to the Property after Closing or the enforcement of any of the Leases, or that would materially and adversely affect the financial condition or operation of the Property.
(except iv) Purchaser has been given access to, or possession of, complete and accurate copies of the Leases, the Permits and Licenses, the Guaranties and Warranties, the Service Contracts and the Plans and Reports (and all amendments thereto) existing as may be of the date of this Agreement.
(1) The information contained in the Lease Schedule is complete and accurate as of the date hereof; and (2) there are no leases, or tenancies or other rights to occupy the Property as of the date hereof other than those set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofLease Schedule.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation Except as set forth in the Lease Schedule:
(1) No action or proceeding has been threatened against or instituted against Seller by any persontenant of the Property which is presently pending in any court, entity including claims involving personal injury or governmental agencyproperty damage, which would affect other than those referred to in Exhibit L attached hereto and made a part of this Agreement and, with the Propertyexception of claims or offsets referred to in Exhibit M, there are no outstanding written claims for rent offsets or claims of Landlord default by any tenants against Seller.
(c2) Seller has received holds no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaidother security or tenant deposits.
(d3) All security and other tenant deposits have been held and, where applicable, returned in compliance with all applicable rules, ordinances and statutes.
(4) There are no leasing commissions outstanding which are payable out of rents or which will not be paid in full by Seller prior to or at Closing except as set forth in Exhibit R.
(5) Each Lease is in full force and effect.
(6) No default exists on the part of Seller or any tenant under any Lease.
(7) No tenant has any defense, offset or counterclaim against or with respect to rent and other sums payable by it under its Lease except as set forth in its Lease.
(8) There are no concessions, free rent periods, tenant improvement obligations, landlord construction obligations or improvement allowances to any tenant not specified in the applicable Lease.
(9) All tenants are in occupancy and continuously operating their premises.
(a) Except as described in the documents set forth on Exhibit N ("Environmental Reports"):
(1) Seller has no knowledge of and has received no written notice Knowledge of any violation of lawfailure to comply with any applicable laws, municipal or county ordinances or regulations, ordinances, codes, judgments, or other legal governmental requirements (collectively, "Laws") with respect to the use, occupancy, construction or condition of the Property (collectively, "Violations"), including without limitation zoning, planning, building, safety, health, electrical, plumbing, or fire Laws and "Environmental Laws" (as defined below) which has not been corrected to the satisfaction of the appropriate governmental authority prior to the date of this Agreement.
(2) No notice has been received from any insurer of the Property requesting any improvements, alterations, additions, corrections, or other work in, on or about the Property. Purchaser shall be promptly notified if any such notice is received by Seller or its manager.
(b) Without limiting the preceding subparagraph (a), except as described in the Environmental Reports:
(1) No enforcement action for violation of Environmental Laws has been or is now pending or, to Seller's Knowledge, is threatened by any governmental authority with respect to the Property.
(e2) The Property does not violate environmental laws applicable to it and Seller has not used To Seller's knowledge, no Hazardous Substance is present on the Property for the generationthat is handled or stored in a manner, or is present in quantities, which require remediation under or otherwise violates applicable Environmental Laws.
(3) There are no above-ground or, to Seller's knowledge, underground storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from tanks at the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a1. Seller has full authority to sign this Agreement and all documents to be executed by Seller as contemplated by this Agreement. The individual(s) No personexecuting this Agreement and all such documents contemplated by this Agreement on behalf of Seller are duly elected or appointed and validly authorized to execute and deliver the same.
2. This Agreement constitutes a legal, firmvalid and binding obligation of Seller and, together with each of the documents to be executed by Seller as contemplated by this Agreement, is enforceable against Seller in accordance with its terms.
3. Seller is duly formed, validly existing and in good standing under the laws of the state of its formation and is qualified to transact business in the state where the Property is located.
4. Seller’s execution and delivery of this Agreement and Seller’s performance of its obligations in accordance with this Agreement will not constitute a violation, breach or default, nor result in the imposition of any lien or encumbrance upon the Property, under any agreement or other instrument to which Seller is a party or by which Seller or the Property is bound. Buyer(s) Initials: /s/ AM Seller(s) Initials: /s/ SB
5. Seller owns good and marketable fee simple title to the Property that is insurable, subject only to the Permitted Exceptions.
6. Seller has not received notice of any legal actions, suits or other legal or administrative proceedings pending or threatened against Seller or the Property, and Seller is not aware of any facts which might result in any such action, suit or other proceeding.
7. To Seller’s knowledge, the Property does not contain any hazardous wastes, hazardous substances, hazardous materials, toxic substances, hazardous air pollutants or toxic pollutants as those terms are used in the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Clean Air Act and the Clean Water Act, and in any amendments thereto, or entity in any regulations promulgated pursuant thereto, or in any applicable state or local law, regulation or ordinance.
8. Seller has no knowledge of (except i) any condemnation or zoning change affecting or contemplated with respect to the Property; (ii) any changes contemplated in any applicable laws, ordinances or restrictions affecting the use of the Property as may be set forth a mobile home park; or (iii) any liens or assessments (governmental or private), either pending or confirmed, with respect to sidewalk, paving, water, sewer, drainage or other improvements on or adjoining the Property or with respect to any property owners’ association, declaration or easement agreement (other than the lien of ad valorem property taxes that are not yet due and payable).
9. To Seller’s knowledge, Seller and the Property have complied and are currently in this Agreement) has any rights compliance with all applicable laws, ordinances, regulations, statutes, rules, restrictions and inspection requirements pertaining to or affecting the Property.
10. There are no Contracts for the Property which are, or will be, a binding obligation of Buyer or that could create a lien, leasehold or other possessory interest, security interest, or encumbrance in or right to acquire against the Property or any part thereof after the Closing, and Seller will deliver to Buyer true, correct and complete copies and originals of all Contracts as part of the Property Files in accordance with this Agreement. To Seller’s knowledge, each Contract is in full force and effect and there are no defaults or events that with notice or lapse of time or both which constitute a default by Seller or any other party to such Contracts.
11. There are no Leases other than as provided to Buyer in the Property Files, and Seller will deliver to Buyer true, correct and complete copies and originals thereof in accordance with this Agreement. To Seller’s knowledge, each Lease is in full force and effect and there are no defaults or events that with notice or lapse of time or both which constitute a default by Seller or the tenant under such Leases. Except as expressly provided in the Leases, there are no tenant finish costs, brokerage commissions or other leasing costs paid or payable in connection with any Lease or renewal or expansion thereof.
(b) 12. The Due Diligence Materials delivered by Seller has received no written notice to Buyer in accordance with this Agreement are full, complete and has no knowledge accurate copies of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertyall Due Diligence Materials within Seller’s possession.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Manufactured Housing Properties Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller represents and warrants to Purchaser Buyer as of the Effective Date and again as of the Closing Date that:
(ai) No personSeller is the fee title owner of the Real Property and has full power and authority to execute, firmdeliver and perform under this Agreement and the Transfer Documents, and no consent of any third party is required for Seller to enter into this Agreement and perform Seller’s obligations hereunder;
(ii) there are no actions or entity proceedings pending or, to Seller’s knowledge, threatened against Seller which may in any manner whatsoever affect the validity or enforceability of this Agreement or any of the Transfer Documents;
(except as iii) the execution, delivery and performance of this Agreement and the Transfer Documents have not and will not constitute a breach of or default under any other agreement, law or court order under which Seller is a party or may be set forth in this Agreementbound;
(iv) has there are no unrecorded leases (other than the Lease), liens or encumbrances which may affect title to the Property; any rights in or right to acquire existing financing secured by the Property or any part thereof.thereof will be satisfied and discharged in full at or prior to Closing and any liens or encumbrances relating thereto will be terminated and released of record at or prior to Closing; and Seller does not have any defeasance, lender approval or prepayment obligations with respect to any existing financing which will delay the Closing; Purchase and Sale Agreement Academy Sports – Cartersville, GA
(bv) Seller to Seller’s knowledge (1) no notice of violation has received no written notice and has no knowledge been issued with regard to any applicable regulation, ordinance, requirement, covenant, condition or restriction relating to the present use or occupancy of any actual or threatened action, litigation, rezoning, condemnation or proceeding the Property by any person, entity authority or governmental agency, which would affect agency having jurisdiction; (2) there is no impending or contemplated Condemnation affecting the Property.; (3) there are no intended public improvements which will or could result in any charges being assessed against the Property or which will result in a lien upon the Property; and (4) there are no proceedings pending for the increase of the assessed valuation of the Property;
(cvi) there are no suits or claims pending or, to Seller’s knowledge, threatened with respect to or in any manner affecting the Property or the Lease, nor does Seller know of any circumstances which should or could reasonably form the basis for any such suits or claims;
(vii) Seller has received no written notice and has no knowledge not taken any action to change the present use or zoning of any governmental assessments concerning or other entitlements or land-use permissions or restrictions upon the Property, which and to Seller’s knowledge there are unpaid.no such proceedings pending;
(dviii) except as may be detailed in the multiple Phase One Reports and any other environmental documents included in Seller’s Diligence Materials, Seller has no actual knowledge of that there exists or has existed, and has received no written notice of neither Seller nor its affiliates have caused, any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage production, location, transportation, storage, treatment, discharge, disposal, release or handling of hazardous materials threatened release upon, under or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on about the Property of any kind against the PropertyHazardous Materials. “Hazardous Materials” means any flammables, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county explosives, radioactive materials, hazardous wastes, hazardous and toxic substances or local authorities related materials, asbestos or any homeowners in the community regarding the type or style of the development of the Propertymaterial containing asbestos (including, exceptwithout limitation, if anyvinyl asbestos tile), for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge substance or information of material defined as a “hazardous substance” by any factsfederal, circumstancesstate, or other conditionslocal environmental law, which do ordinance, rule or would in any way adversely affect regulation including, without limitation, the PropertyFederal Comprehensive Environmental Response Compensation and Liability Act of 1980, or as amended, the successful operation Federal Hazardous Materials Transportation Act, as amended, the Federal Resource Conservation and Recovery Act, as amended, and the rules and regulations adopted and promulgated pursuant to each of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.foregoing;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)material inducement to Purchaser, Seller represents and warrants to Purchaser that, as of the date of this Agreement and as of the Closing Date:
(a) No personthere are no actions, firmsuits, or entity (except as may be set forth in proceedings pending, or, to the knowledge of Seller, threatened, against Seller or the Premises, or involving the validity or enforceability of this Agreement) has any rights in , including, but not limited to, petitions under the Bankruptcy Act of 1978 or right to acquire other petitions for reorganization or for debtor relief or for the Property or any part thereof.appointment of a receiver;
(b) the execution and delivery of this Agreement by Seller and the performance and observance of the terms have all been authorized by all necessary actions of Seller. This Agreement has received no written notice been duly executed and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding delivered by any person, entity or governmental agency, which would affect the Property.Xxxxxx. This Agreement is in full force and is enforceable against Seller in accordance with its terms;
(c) Seller has received no written notice owns good, Marketable, and has no knowledge Insurable fee simple title free of any governmental assessments concerning all Title Defects for the real property. Seller owns good title free of all Title Defects for the balance of the Property, which are unpaid.;
(d) Seller has no knowledge of and has received no written notice of the Premises have not suffered any violation of lawdamage by fire, municipal or county ordinances or codeswindstorm, or other legal requirements with respect hazard that is not fully covered by insurance (or if covered by insurance, that would make it economically impractical for the Premises to be restored or repaired) and that have not been fully restored, repaired, and rebuilt and no condemnation or other proceedings prohibiting the Property.full use of the Premises as originally contemplated by the parties have been instituted or threatened;
(e) The Property does not violate environmental laws applicable to it and Seller has not used not, without the Property prior written approval of Purchaser, incurred any liability or obligation for leasing commissions to any broker or agent in connection with the generation, storage or handling making of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.Leases;
(f) Seller is orthe Plans and Specifications and the Premises, as when Completed, will comply with all applicable Requirements of the Closing Date will be, the owner of fee simple, marketable title to the Property.Governmental Authorities having jurisdiction; and
(g) None the Improvements, when Completed in accordance with the Plans and Specifications, as previously approved by the City of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or Atwater, will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Sellerstructurally sound.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)and Closing Date, Seller represents and warrants to Purchaser thatas follows:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received no written notice from any governmental authority with jurisdiction over the Property of any violation by the Property of any laws, ordinances or regulations applicable to the Property, Seller and has no the Property is in compliance with any past notices of past violations, and, to Seller’s actual knowledge, Seller and the Property are in compliance with all applicable laws (whether or not any notices have been received). Seller shall immediately provide Purchaser with a copy of any such notices received or knowledge of any such non- compliance obtained after the Effective Date.
(ii) There is no litigation ongoing, pending or, to Seller’s actual knowledge, threatened against Seller that arises out of the ownership of the Property or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect otherwise against the Property.
(ciii) Seller has received no written notice and has no knowledge of any governmental assessments concerning No condemnation or eminent domain proceedings are pending against the PropertyProperty or, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawto Seller’s actual knowledge, municipal or county ordinances or codes, or other legal requirements with respect to threatened against the Property.
(eiv) The Property does not violate environmental laws applicable to it and Seller has not used the Property (A) made a general assignment for the generation, storage benefit of creditors; (B) filed any voluntary petition in bankruptcy or handling suffered the filing of hazardous materials or contaminants and there has been no release an involuntary petition by its creditors; (C) suffered the appointment of a hazardous substance on receiver to take possession of all or from substantially all of its as-sets; (D) suffered the Propertyattachment or other judicial seizure of all or substantially all of its assets; (E) admitted in writing its inability to pay its debts as they come due; or (F) made an offer of settlement, extension or composition to its creditors generally.
(fv) Seller is or, as a trust duly formed and validly existing under the laws of the Closing Date will beState of Indiana and holds marketable, the owner of fee simple, marketable simple title to the Property.
(gvi) This Agreement and all documents executed by Seller that are to be delivered to Purchaser at the Closing are, or at the time of Closing will be, duly authorized, executed and delivered by Seller, and are, or at the time of Closing will, be legal, valid and binding obligations of Seller, and do not, and at the time of Closing, will not, violate any provisions of any contract or judicial order to which Seller is a party or to which Seller is subject. Seller has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform Seller obligations under this Agreement.
(vii) All Due Diligence Items provided to Purchaser are true, correct and complete copies of such items. None of the lots are located Due Diligence Items provided to Purchaser have been amended or modified except as disclosed in a flood plain areawriting to Purchaser.
(hviii) No improvements There are no contracts or repairs have been made or will be made agreements relating to the Property on behalf ownership, operation and maintenance of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs Property that will: (A) prevent Closing; (B) give rise to a lien on the Property on behalf of Seller Property; or for services of architects, surveyors or engineers engaged by Seller.
(iC) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Propertysurvive Closing, other than those items which are pro-rated the Lease (as hereinafter defined) and service contracts that Purchaser elects, in connection with its sole discretion, to assume at Closing.
(jix) Seller has made no representations to any county Except for Hazardous Materials used or local authorities stored in de-minimis amounts at the Real Property as cleaning or any homeowners office supplies in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one accordance with applicable Environmental Laws: (1) yearthere are no Hazardous Materials present on the Property; (2) the Property is not now being, and never has been, used for the generation, transportation, treatment, storage or disposal of any Hazardous Materials, except for a permanently out of use underground storage tank located on the Property; (3) there have never been any release of Hazardous Materials from or onto the Property; and (4) there are no violations of any Environmental Laws relating the Property. For purposes of this Agreement, the term “Hazardous Materials” shall mean any substance, chemical, waste product, underground storage tank or other material which is listed, defined, or otherwise identified as “hazardous” or “toxic” or as a “hazardous material” or “hazardous substance” or otherwise regulated for health or environment concerns under any federal, state, local or administrative agency law, regulation, rule or ordinance (collectively, “Environmental Laws”), including, without limitation, formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel or mixture thereof, radon, asbestos or underground storage tanks.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller represents and warrants to Purchaser that:
(ai) No personSeller has the full right, firmpower, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or entity provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(except iii) there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no Actual Knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as may be set forth in this Agreementdefined below) concerning the Property, which have not been remedied,
(v) Seller has no Actual Knowledge of, and has not received, with respect to the Property, written notice from any rights in governmental authority regarding, any change to the zoning classification, any condemnation proceedings or right proceedings to acquire widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vi) to Seller’s Actual Knowledge the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property, and there are no other such agreements affecting the Property that will survive Closing,
(vii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) to Seller’s Actual Knowledge, except for those tenants in possession of the Property under written leases for space in the Property, as shown on the rent roll attached hereto as Exhibit “F” (the “Rent Roll”), there are no parties in possession of, or claiming any part thereofpossession to, any portion of the Property,
(ix) to Seller’s Actual Knowledge, no leases have been or shall be entered into with any party that, directly or indirectly, has an ownership interest in Seller, or is otherwise in any manner affiliated with Seller (an “Affiliate”). Additionally, to Seller’s Actual Knowledge, all existing leases have been (and all future leases shall be) entered into only with third parties that are unknown to Seller, any Affiliate of Seller, and their respective officers, directors, principals, managers, members, partners, shareholders, agents and/or representatives.
(x) at Closing there will be no unpaid bills or claims in connection with any repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(xi) to Seller’s Actual Knowledge, the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Roll,
(xii) Seller has no Actual Knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or, to Seller’s Actual Knowledge, verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or insurer,
(xiv) there are no employment agreements of any kind to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xv) to Seller’s Actual Knowledge, the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, and all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects.
(xvi) to Seller’s Actual Knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xvii) to Seller’s Actual Knowledge: there are no underground storage tanks located on or under the Land other than dry xxxxx used for storm water runoff, there are no conditions on, at or relating to the Property which are in non-compliance with “Environmental Requirements” (as defined below), and there are no “Hazardous Materials” (as defined below) on, in or under the Land in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xviii) To Seller’s Actual Knowledge, Seller has obtained all necessary certificates, licenses and other approvals, governmental and otherwise, necessary for the operation of the Real Estate and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which are in full force and effect as of the date hereof; and additionally, to Seller’s Actual Knowledge, the Real Estate is legally compliant and conforming with all applicable zoning laws, rules and regulations, and
(xix) Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Executive Order and such other rules, regulations, legislation, or orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Executive Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders; or (c) is owned or controlled by, or acts for or on behalf of, any person on the OFAC Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders, or any other anti-terrorism or anti-money laundering laws or regulations, including, without limitation, the Bank Secrecy Act, as amended, or the Money Laundering Control Act of 1986, as amended.
(b) Seller has received no written notice As used in this Agreement, the term “Actual Knowledge” (or words of similar import) shall, when used with respect to Seller, mean the present, current, actual, conscious (and has no not constructive, imputed or implied) knowledge of Xxxxxx X. Xxxx without any actual duty to conduct any investigation or threatened action, litigation, rezoning, condemnation or proceeding by inquiry of any person, entity or governmental agency, which would affect kind. Seller represents and warrants that Xxxxxx X. Xxxx is the individual within Seller’s business organization that is most knowledgeable with respect to the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect shall deliver a certificate to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as Purchaser at Closing recertifying all of the Closing Date will be, the owner of fee simple, marketable title foregoing representations and warranties to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full Purchaser as of the Closing Date, such that all such representations and there will warranties shall be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As deemed made to Purchaser as of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the foregoing representations and warranties of expressly shall survive the Closing, except for those set forth in Sections 4.3(a)(xvi) and (xvii) above (the “Limited Duration Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity Representations”) which shall survive the Closing for a period of one twelve (112) yearmonths (the “Limited Duration Warranty Survival Period”). Purchaser shall notify Seller in writing of any prospective claim for breach of a representation or warranty within thirty (30) days after Purchaser has acquired actual knowledge of a breach of the relevant representation or warranty (but, with respect to the Limited Duration Seller Representations, in any event, if such notice is not provided prior to the expiration of the Limited Duration Warranty Survival Period, such claims shall be irrevocably and unconditionally barred). Even if notice of a prospective claim is timely given, any legal action with respect to a claim for breach of any of the Limited Duration Seller Representations shall be filed with a court of proper jurisdiction, if at all, not later than thirty (30) days after the conclusion of the Limited Duration Warranty Survival Period, or thereafter be irrevocably and unconditionally barred.
(d) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property, and (x) any “hazardous substance” as now or hereafter defined in the Arizona Environmental Quality Act (Title 49, Arizona Revised Statutes). Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, ambient air, surface water, ground water or land or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Each Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received the full right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iii) there is no written notice and existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no knowledge of of, and has not received any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of, any violation of any governmental assessments requirements (including “Environmental Requirements”, as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(evi) The Property does not violate environmental laws applicable the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and (to it and Seller has not used the Property for best knowledge of Seller) complete list of all service contracts, equipment leases and/or maintenance agreements affecting the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a “foreign person” within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will be, the owner of fee simple, marketable title to Property under written leases for space in the Property., as shown on the rent roll attached hereto as Exhibit “F” (the “Rent Roll”), there are no parties in possession of, or claiming any possession to, any portion of the Property,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Roll,
(xi) the financial information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, is, to the best of Seller’s knowledge, true, correct and complete in all material respects,
(xii) Except as set forth in those certain environmental reports furnished to Purchaser by Seller, as more particularly described on Schedule “D” attached hereto and incorporated herein, Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xv) to the best of Seller’s knowledge, (1) there are no underground storage tanks presently located on or under the Property, other than those items (2) there are no conditions on, at or relating to the Property which are proin non-rated compliance with “Environmental Requirements” (as defined below), and (3) there are no “Hazardous Materials” (as defined below) on, in connection with Closing.or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(jxvi) Seller has made no representations is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Executive Order and such other rules, regulations, legislation, or orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Executive Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any county of the rules and regulations of OFAC or local authorities pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or any homeowners (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the community regarding the type Foreign Asset Orders; or style of the development of the Property(c) is owned or controlled by, exceptor acts for or on behalf of, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien on the OFAC Lists or any other lien.person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders, or any other anti-terrorism or anti-money laundering laws or regulations, including, without limitation, the Bank Secrecy Act, as amended, or the Money Laundering Control Act of 1986, as amended,
(lxvii) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property.
(xviii) to the best of Seller’s knowledge, including following inquiry of Seller’s property manager, all sales or transactional privilege taxes from each applicable sales taxing authority (state, county, and city) with respect to the Property are paid current and there are no delinquencies with respect to the payment of such taxes. Seller shall deliver a certificate to Purchaser at Closing recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date, such that all such representations and warranties shall be deemed made to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other conditionspetroleum hydrocarbons; (v) asbestos and asbestos containing materials, which do or would in any way adversely affect form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property, and (x) any “hazardous substance” as now or hereafter defined in the Arizona Environmental Quality Act (Title 49, Arizona Revised Statutes) . Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the successful operation use of the Property, except as specifically provided relating to Purchaser in writing during pollution, the Feasibility Period. All protection or regulation of human health, natural resources, or the representations and warranties environment, or the emission, discharge, release or threatened release of Seller shall be true and correct as of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossenvironment (including, damageswithout limitation, costs ambient air, surface water, ground water or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearland or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller hereby warrants and represents and warrants to Purchaser that:
(ai) No personSeller has full right, firmpower and authority to enter into, or entity (except as may be set forth in execute, acknowledge and deliver this Agreement) Agreement and that all requisite actions have been taken by Seller to consummate the transaction contemplated by this Agreement and no other party other than the party signatory to this Agreement has any rights interest in or right to acquire the Property or any part thereof.Property;
(bii) Seller has not entered into any agreement for the sale or transfer of development rights affecting any portion of the Property;
(iii) To the best of Seller’s knowledge, Seller has received no written actual notice of any threatened claim or litigation relating to the Property or the transactions contemplated by this Agreement that, if successful would have any material negative effect on the value of the Property or Seller’s ability to transfer the Property as contemplated by this Agreement. For purposes of this representation, “to the best of Seller’s knowledge,” shall mean the current actual knowledge of the County Attorney of the County of Fairfax, Virginia, without any independent investigation or inquiry, and has no without regard to the knowledge of any actual former or threatened actionother employees, litigation, rezoning, condemnation agents or proceeding by any person, entity or governmental agency, which would affect the Propertycontractors of Seller.
(civ) To the best of Seller’s knowledge, this Agreement does not violate the terms of any other contract, lease agreement, law, order, regulation or instrument to which Seller has received no written notice is a party or by which Seller is bound. For purposes of this representation, “to the best of Seller’s knowledge,” shall mean the current actual knowledge of the Director of Fairfax County Department of Housing and has no Community Development, without any independent investigation or inquiry, and without regard to the knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, former or other legal requirements with respect to employees, agents or contractors of Seller; After execution of this Agreement, except as may otherwise be provided herein, Seller may not cause an adverse change in the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as condition of the Closing Date will be, Land or the owner status of fee simple, marketable Seller’s title to the Property.
(g) None . Seller covenants and agrees immediately to notify Purchaser of any state of facts which would constitute a breach of or render inaccurate any of the lots are located in a flood plain areaforegoing warranties promptly after becoming aware of such state of facts.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)and Closing Date, Seller represents and warrants to Purchaser thatas follows:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received no written notice from any governmental authority with jurisdiction over the Property of any violation by the Property of any laws, ordinances or regulations applicable to the Property, Seller and has no the Property is in compliance with any past notices of past violations, and, to Seller’s actual knowledge, Seller and the Property are in compliance with all applicable laws (whether or not any notices have been received). Seller shall immediately provide Purchaser with a copy of any such notices received or knowledge of any such non- compliance obtained after the Effective Date.
(ii) There is no litigation ongoing, pending or, to Seller’s actual knowledge, threatened against Seller that arises out of the ownership of the Property or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect otherwise against the Property.
(ciii) Seller has received no written notice and has no knowledge of any governmental assessments concerning No condemnation or eminent domain proceedings are pending against the PropertyProperty or, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawto Seller’s actual knowledge, municipal or county ordinances or codes, or other legal requirements with respect to threatened against the Property.
(eiv) The Property does not violate environmental laws applicable to it and Seller has not used the Property (A) made a general assignment for the generation, storage benefit of creditors; (B) filed any voluntary petition in bankruptcy or handling suffered the filing of hazardous materials or contaminants and there has been no release an involuntary petition by its creditors; (C) suffered the appointment of a hazardous substance on receiver to take possession of all or from substantially all of its as-sets; (D) suffered the Propertyattachment or other judicial seizure of all or substantially all of its assets; (E) admitted in writing its inability to pay its debts as they come due; or (F) made an offer of settlement, extension or composition to its creditors generally.
(fv) Seller is or, as a limited liability duly formed and validly existing under the laws of the Closing Date will beState of Indiana and Seller holds marketable, the owner of fee simple, marketable simple title to the Property.
(gvi) This Agreement and all documents executed by Seller that are to be delivered to Purchaser at the Closing are, or at the time of Closing will be, duly authorized, executed and delivered by Seller, and are, or at the time of Closing will, be legal, valid and binding obligations of Seller, and do not, and at the time of Closing, will not, violate any provisions of any contract or judicial order to which Seller is a party or to which Seller is subject. Seller has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform Seller obligations under this Agreement.
(vii) All Due Diligence Items provided to Purchaser are true, correct and complete copies of such items. None of the lots are located Due Diligence Items provided to Purchaser have been amended or modified except as disclosed in a flood plain areawriting to Purchaser.
(hviii) No improvements There are no contracts or repairs have been made or will be made agreements relating to the Property on behalf ownership, operation and maintenance of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs Property that will: (A) prevent Closing; (B) give rise to a lien on the Property on behalf of Seller Property; or for services of architects, surveyors or engineers engaged by Seller.
(iC) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Propertysurvive Closing, other than those items which are pro-rated service contracts that Purchaser elects, in connection with its sole discretion, to assume at Closing.
(jix) Seller has made no representations to any county Except for Hazardous Materials used or local authorities stored in de-minimis amounts at the Real Property as cleaning or any homeowners office supplies in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one accordance with applicable Environmental Laws: (1) yearthere are no Hazardous Materials present on the Property; (2) the Property is not now being, and never has been, used for the generation, transportation, treatment, storage or disposal of any Hazardous Materials, except for a permanently out of use underground storage tank located on the Property; (3) there have never been any release of Hazardous Materials from or onto the Property; and (4) there are no violations of any Environmental Laws relating the Property. For purposes of this Agreement, the term “Hazardous Materials” shall mean any substance, chemical, waste product, underground storage tank or other material which is listed, defined, or otherwise identified as “hazardous” or “toxic” or as a “hazardous material” or “hazardous substance” or otherwise regulated for health or environment concerns under any federal, state, local or administrative agency law, regulation, rule or ordinance (collectively, “Environmental Laws”), including, without limitation, formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel or mixture thereof, radon, asbestos or underground storage tanks.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. As of Seller represents and ---------------------------------------- warrants to Purchaser that the following facts and circumstances are and at all times up to and including the Effective Date (unless a different date is specified), Seller represents will be true and warrants to Purchaser thatcorrect:
(a) No personSeller has all requisite power and authority to own, firm, or entity (except operate and carry on its business as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofnow being conducted.
(b) Seller has received is the sole owner of the Business Assets with full right to sell or dispose of said assets as Seller may choose. No other person or persons have any claim, right, title, interest or lien in, to or on Seller, or any of the Business Assets described hereinabove. Seller shall provide to Purchaser prior to Closing UCC searches evidencing no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect liens on the PropertyBusiness Assets.
(c) All federal, state, local, and foreign income, ad valorem, excise, sales, use, payroll, unemployment, and other taxes and assessments ("Taxes") that are due and payable by Seller on behalf of Seller as they relate to its business have been properly computed, duly reported, fully paid, and discharged. There are no unpaid Taxes that are or could became a lien on the Business Assets, except for current Taxes not yet due and payable. Seller has received no written notice and has no knowledge not incurred any liability for penalties, assessments, or interest under the Internal Revenue Code. No unexpired waiver executed by or on behalf of Seller with respect to any governmental assessments concerning the Property, which are unpaidTaxes is in effect.
(d) Seller has no knowledge good and marketable title to all of the Business Assets. All of the Business Assets that are the subject of this Agreement are free and has received no written notice clear of any violation mortgages, liens, pledges, charges, encumbrances, equities, claims, easements, rights of lawway, municipal or county ordinances or codescovenants, or other legal requirements with respect to the Propertyconditions, and restrictions.
(e) The Property does Seller is not violate environmental laws applicable to it and Seller has not used in default or in violation of any law, regulation, court order, or order of any federal, state, municipal, foreign, or other government department, board, bureau, agency, or instrumentality, wherever located, that could negatively impact the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the PropertyBusiness Assets.
(f) Seller is orhas full power and authority to execute, as of the Closing Date will bedeliver, the owner of fee simpleand/or consummate this Agreement, marketable title subject to the Property.
(g) None of the lots are located conditions to Closing set forth in a flood plain area.
(h) No improvements or repairs this Agreement. All reports and returns required to be filed by Seller with any governmental and regulatory agency with respect to this transaction have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full properly filed. Except as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those otherwise disclosed in writing this Agreement, no notice to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid or approval by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lienperson, firm, entity, including governmental authorities, is required by Seller to consummate the transaction contemplated by this Agreement.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Asset Purchase Agreement (Demarco Energy Systems of America Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received the full right, power, and authority, without the joinder of any other person
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iii) there is no written notice and existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no knowledge of of, and has not received any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of, any violation of any governmental assessments requirements (including “Environmental Requirements”, as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(evi) The Property does not violate environmental laws applicable to it the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and Seller has not used complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property for the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a “foreign person” within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will be, the owner of fee simple, marketable title to Property under written leases for space in the Property., as shown on the rent roll attached hereto as Exhibit “F” (the “Rent Roll”), there are no parties in possession of, or claiming any possession to, any portion of the Property,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Roll,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, and all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects,
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Property, other than those items which are pro-rated in connection with Closing.,
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(lxv) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and to the best of Seller’s knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvi) to the best of Seller’s knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys, and
(xvii) to the best of Seller’s knowledge, there are no underground storage tanks located on or under the Property, there are no conditions on, at or relating to the Property which are in non-compliance with “Environmental Requirements” (as defined below), and there are no “Hazardous Materials” (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other conditionspetroleum hydrocarbons; (v) asbestos and asbestos containing materials, which do or would in any way adversely affect form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the successful operation use of the Property, except as specifically provided relating to Purchaser in writing during pollution, the Feasibility Period. All protection or regulation of human health, natural resources, or the representations and warranties environment, or the emission, discharge, release or threatened release of Seller shall be true and correct as of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossenvironment (including, damageswithout limitation, costs ambient air, surface water, ground water or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearland or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different and as of the date is specified)of Closing, Seller hereby represents and warrants to Purchaser that:
(a) No personSeller is the owner and, firm, or entity (except as may be subject to the matters set forth in this Agreement) , has any rights in or right full right, power and authority to acquire sell, convey and transfer the Property to Buyer as provided in this Agreement and to carry out Seller's obligations under this Agreement. This Agreement and all documents executed by Seller that are to be delivered prior to or any part thereofat Closing have been duly authorized and have been (or, when executed and delivered, will be) duly executed and delivered by Seller and are (or, when executed and delivered will be) legal, valid and binding obligations of Seller.
(b) Seller has received no written notice The execution, delivery and has no knowledge performance of this Agreement, and the consummation of the transaction contemplated hereby, will not result in any breach of or constitute any default under or result in the imposition of any actual lien or threatened action, litigation, rezoning, condemnation encumbrance against any part of the Property under any agreement or proceeding other instrument to which Seller is a party or by which Seller or any person, entity or governmental agency, which would affect part of the PropertyProperty might be bound.
(c) Seller has received no written notice is aware of the provisions of the Deficit Reduction Act of 1984, 26 U.S.C. Section 1445, et seq., and has no knowledge the Internal Revenue Service regulations implementing said Act referring to the withholding tax on the disposition of any governmental assessments concerning the PropertyUnited States real property interests by foreign persons and foreign corporations, which are unpaidand Seller is not a foreign person or corporation as defined by said Act and regulations.
(d) In the event any claim is made by any party for the payment of sums due for the furnishing of labor, materials, equipment or fuel to Seller has no knowledge or to the Property at the request of and has received no written notice of any violation of law, municipal or county ordinances or codesSeller prior to Closing, or other legal requirements with respect in the event any lien is filed against the Property subsequent to Closing as a result of the Propertyfurnishing of such materials, labor, equipment or fuel at the request of Seller, Seller shall immediately cause said lien to be released of record or otherwise satisfy Buyer, to Buyer's reasonable satisfaction, that such lien will be immediately released.
(e) The Property does not violate environmental laws applicable to it and Seller has not used To the Property for the generation, storage or handling best of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is orSeller's actual knowledge without investigation, as of the Closing Date will be, the owner date of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full this Contract and as of the Closing Datedate of Closing, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf (including land, surface water, ground water and improvements) is now and will then be free of Seller or for services of architectsall contamination, surveyors or engineers engaged by Seller.
including (i) As any "hazardous waste", "underground storage tanks", "petroleum", "regulated substance", or "used oil" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss. 9601, et seq.) as amended, or by any regulations promulgated thereunder; (ii) any "hazardous substance" as defined by the Closing DateComprehensive Environmental Response, there will be no unpaid bills Compensation and Liability Acto of 1980 (42 U.S.C. ss. 9601, et seq.) as amended, or liens for past due taxes by any regulations promulgated thereunder (including, but not limited to, asbestos and radon); (iii) any "oil, petroleum products, and their byproducts", as defined by C.R.S. 1973 ss. 25-17-101 et seq., as amended, or assessments by any regulations promulgated thexxxxxxx; (iv) any "hazardous waste" as defined by the Colorado Waste Act, C.R.S. 1973 ss. 25-15-101, et seq., or by any regulations promulgated thereunder; (x) xxy substance the presence of any naturewhich on, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities in or other services provided for the benefit of the Seller on under the Property of is prohibited by any kind against the Property, other than law similar to those items which are pro-rated in connection with Closing.
set forth above; and (jvi) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other liensubstance which by law, regulation or ordinance requires special handling in its collection, storage, treatment or disposal.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatBuyer as follows:
(a) No person, firmSeller is a corporation duly formed and validly existing under the laws of the State of Delaware and in good standing under the laws of the State of Delaware; Seller has, or entity (except as may be set forth will have prior to Closing, the full right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby; no consent is necessary from any party in order for Seller to enter into and perform this Agreement) ; the person signing this Agreement and any of the other documents on behalf of Seller has full power and authority to bind Seller; and when executed by Seller, this Agreement shall be binding and enforceable against Seller in accordance with its terms, and upon Seller’s execution of any rights other documents contemplated herein, they shall be binding and enforceable against Seller in or right to acquire the Property or any part thereofaccordance with their terms.
(b) Other than as disclosed in the Property Documents, Seller has not received no any written notice and from any city, county, state or other government authority stating that the Property is in material violation of the laws, rules or ordinances applicable to the Property which violation has not been remedied.
(c) There exists no knowledge actions, suits, arbitrations, investigations, condemnations or proceedings of any actual kind or nature whatsoever, legal or equitable, pending or threatened actionin writing, litigationagainst Seller or the Property, rezoningor any portion or portions thereof, in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality, including, without limitation, any condemnation or proceeding by any personeminent domain proceeding, entity that in each case, would materially affect the current ownership or governmental agency, which would affect operation of the Property.
(cd) To Seller’s actual knowledge, Seller has not received no any written notice and has no knowledge from any city, county, state or other government authority stating that the Property is in violation of any Environmental Laws (as hereinafter defined) which violation has not been remedied. For purposes of this Agreement, "Hazardous Materials" shall mean any pollutants, contaminants, hazardous or toxic substances, materials or wastes (including petroleum, petroleum by-products, radon, asbestos and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing equipment, radioactive elements, infectious agents, and urea formaldehyde), as to the extent such terms are regulated by and used in any Environmental Laws and "Environmental Laws" shall mean all federal, state and local environmental laws, rules, statutes, directives, binding written interpretations, binding written policies, ordinances and regulations issued by any governmental assessments concerning or quasi-governmental body or agency having jurisdiction over Seller, the Property, which are unpaid.
(d) Seller has no knowledge Property or any portion thereof and in effect as of and has received no written notice the date of any violation of law, municipal or county ordinances or codes, or other legal requirements this Agreement with respect to the Property.
(e) The Property does not violate environmental laws applicable or which otherwise pertain to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or any portion thereof, the successful use, ownership, occupancy or operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All or any portion thereof, or any owner of the representations Property, and warranties as the same have been amended, modified or supplemented from time to time prior to the date of Seller shall be true this Agreement, including but not limited to the Comprehensive Environmental Response, Compensation and correct as Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Closing Date Hazardous Substances Transportation Act (49 U.S.C. § 1802 et seq.), the Resource Conservation and Seller shall reRecovery Act (42 U.S.C. § 6901 et seq.), the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-certify to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the representations Radon and warranties on Indoor Air Quality Research Act (42 U.S.C. § 7401 note, et seq.), the Closing Date Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), comparable state and shall indemnify local laws, and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due rules and regulations which have become effective prior to the inaccuracy thereof. This indemnity shall survive date of this Agreement under any and all of the Closing for a period of one (1) yearaforementioned laws.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)In addition to other representations herein, Seller represents and warrants to Purchaser Buyer as of the date of closing that:
(a) No person8.1 Seller, firmand the person signing on behalf of Seller, has full power and authority to execute this Agreement and perform Seller's obligations hereunder, and all necessary partnership action to authorize this transaction has been taken;
8.2 The Property is not subject to any leases, tenancies or entity (except as may be set forth rights of persons in this Agreement) has possession;
8.3 Neither the Property nor the sale of the Property violates any rights in applicable statute, ordinance or right regulation, nor any order of any court or any governmental authority or agency, pertaining to acquire the Property or the use occupancy or condition thereof;
8.4 Seller is unaware of any part thereof.material defect in the Property;
(b) 8.5 All persons and entities supplying labor, materials and equipment to the Property have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for public improvements against the Property and Seller is not aware of any local improvement district or other taxing authority having jurisdiction over the Property in the process of formation;
8.7 The Property has legal access to all streets adjoining the Property;
8.8 Seller has received no written notice good and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.;
(g) None 8.9 Seller is not a "foreign person" for purposes of Section 1445 of the lots are located Internal Revenue Code. Prior to closing, Seller shall execute and deliver to Closing Agent an affidavit in a flood plain area.order to meet the Foreign Investment in Real Property Tax Act ("FIRPTA") requirements of I.R.C. #1445; and
(h) No improvements or repairs have been made or will be made to 8.10 Seller has not received notification of any kind from any agency suggesting that the Property on behalf is or may be targeted for a Superfund or similar type of cleanup. To the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as best of the Closing DateSeller's knowledge, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on neither the Property on behalf of Seller nor any portion thereof is or for services of architects, surveyors or engineers engaged by Seller.
has been used (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit storage, disposal or discharge of the Seller on the Property of any kind against the Propertyoil, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities solvents, fuel, chemicals or any homeowners in the community regarding the type of toxic or style of the development of the Propertydangerous or hazardous waste or substance, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(kii) All labor performed and materials supplied for the Property have been fully paid by Selleras a landfill or waste disposal site, and (iii) does not contain any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) underground storage tanks. Seller has no knowledge or information of any factsagrees to indemnify, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify defend and hold Buyer harmless the other party for from and against any and all loss, damagesdamage, claims, penalties, liability, suits, costs and expenses (including, without limitation, reasonable attorneys' fees) and also including without limitation, costs of remedial action or liabilities cleanup, suffered or incurred due by Buyer arising out of or related to any such use of the Property, or portion thereof, occurring prior to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearconveyance to Buyer, about which Seller knew or reasonably should have known prior to closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Eagle Hardware & Garden Inc/Wa/)
Seller’s Representations and Warranties. As In addition to the limited warranties of the Effective Date (unless a different date is specified)title contained in Section 8 hereof, Seller represents and warrants to Purchaser thatits knowledge:
A. The Seller has disclosed and the Purchaser has accepted that there are certain improvements that are a part of the Property, but which are not owned by the Seller, but rather owned by Snake River Vineyards, a Washington joint venture. Such improvements include the apple tree plantings, irrigation equipment, water rights and a pipeline easement for irrigation water which runs underground to this Property, across the property of third parties, and originating from property of Snake River Vineyards nearby. These improvements that are owned by Snake River Vineyards (ahereinafter the “Snake River Vineyards Improvements”) No personare included for purchase by the Purchaser under the terms of a separate purchase and sale agreement which will be closing contemporaneously between Snake River Vineyards as the seller thereunder and this Purchaser.
B. As of Execution Date, firmthe Improvements, if any, that are part of the Property, are in working order;
C. Seller has not received notice that any Improvements, Personal Property or Fixtures, if any, have been damaged so as to render them inoperable, or entity (except that it is a party to any law suit or order of a court or governmental body that would materially interfere with its ability to consummate the Purchase and Sale Agreement;
D. Seller has not stored or deposited any substance classified as may be set forth a hazardous substance as defined under RCW 70.105D.020(7) in this Agreement) violation of any local, state, or federal statute, regulation or order or in a manner inconsistent with the instructions from the manufacturer pertaining to such substance and has no knowledge that any rights other person has stored or deposited same in violation of any local, state, or right federal statute, regulation or order or in a manner inconsistent with the instructions from the manufacturer pertaining to acquire such substance;
E. There is no pending condemnation or similar proceeding affecting the Property or any part portion thereof.
(b) , and Seller has not received no written notice that any such proceeding is contemplated;
F. Seller has complied in all material respects with legal requirements of its ownership and has no knowledge use of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
G. As to the Contracts, (ci) the Contracts are the only Contracts that affect or otherwise give rights or possessory interests in the Property other than contracts that may be terminated without penalty or obligation to Purchaser and upon thirty (30) days’ notice, (ii) Seller has not received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawdefense, municipal set-off, claim or county ordinances counterclaim, suspension or codesrevocation affecting said Contracts, or other legal requirements any of them; (iii) with respect to any Contract requiring a payment or other form of performance by the Property.
(e) The Property does not violate environmental laws applicable other party to it and Seller has not used the Property for the generationsaid Contract, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on prepayment or from advance performance thereunder; and (iv) the Property.Contracts are not in default;
(f) H. Closing will not violate any law or court or governmental order to which the Property or Seller is orsubject or the terms of any Contract;
I. There are no persons, as of the Closing Date will be, the owner of fee simple, marketable title other than Seller and persons that are parties to the Property.
(g) None Contracts, or Purchaser, in possession of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which Snake River Vineyards, the tenant now farming the Property;
J. Seller(s) who are pro-rated not individuals, are duly authorized corporations, limited liability companies or trusts in connection good standing under Washington law;
K. This Agreement and Seller’s performance hereof have been duly authorized by the Owners, Members and Manager, respectively and At Closing, Seller shall provide a resolution of its Company(ies) or entities authorizing Seller to enter into this transaction and indicating that this transaction is fully binding upon the Seller and its entities.;
L. This Agreement is binding upon Seller in accordance with its terms;
M. Seller is engaged in commercial agriculture;
N. The Jxxxx X. Xxxxxxxx Marital Trust is the sole member of the Seller. Except as otherwise specifically provided in this Agreement, Purchaser accepts the Purchased Assets and title thereto AS IS and WITH ALL FAULTS, and there are no implied warranties or representations by Seller respecting same. For purposes hereof, Seller’s knowledge means the actual current knowledge of Jxxxx X. Xxxxxxxx and Txx Xxxxxx,. Where a representation or warranty refers to notice, it shall mean receipt of written notice from the governmental agency or contract party. If Purchaser has knowledge that any representation or warranty of Seller contained herein is not true at Closing.
, fails to give notice thereof to Seller prior to Closing Date while Purchaser has an opportunity to terminate this Agreement and thereafter Closes, that representation or warranty shall have no further force and effect. Representations shall survive Closing by twelve (j12) Seller has made no representations months and shall thereafter be without legal force and effect unless suit is brought by Purchaser respecting a breach thereof within such twelve (12) month period, but this limitation shall not apply to any county or local authorities or any homeowners warranty contained in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstancesthis Agreement, or other conditionsto any false representation made in this Agreement, which do or would in any way adversely affect the Property, or the successful operation with actual knowledge of the Property, except as specifically provided to Purchaser in writing during the Feasibility Periodits falsity. All of the representations and warranties of Seller Each representation shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Taggares Agriculture Corp.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatas follows:
(ai) No personNeither the execution nor the delivery of this Agreement, firmnor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or entity provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound;
(ii) To Seller’s actual knowledge, except as may be set forth disclosed to Purchaser in this Agreement) has any rights in writing, there is no existing or right to acquire pending litigation affecting the Property or any part thereof.other than routine dispossessory proceedings with respect to tenants in default under Space Leases;
(biii) To Seller’s actual knowledge, Seller has not received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of lawany governmental requirements concerning the Property, municipal or county ordinances or codeswhich has not been remedied;
(iv) To Seller’s actual knowledge, or other legal requirements Seller has not received, with respect to the Property, written notice from any governmental authority regarding any change to the zoning classification of the Land, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Land or that otherwise affects the Land or the Improvements;
(v) Except as may be identified in any environmental reports delivered by Seller to Purchaser as a part of the Due Diligence Items, to Seller’s actual knowledge, Seller has not received any written notice from any governmental authority that the Property is in violation of any federal, state, or local laws, ordinances or regulations applicable to the Property with respect to Hazardous Materials (as hereinafter defined) or toxic substances. Except for the foregoing, Seller makes no representations or warranties as to whether the Property contains asbestos, radon or any hazardous materials or harmful or toxic substances, or pertaining to the extent, location or nature of same, if any. Further, to the extent that Seller has provided Purchaser information from any inspection, engineering or environmental reports concerning asbestos, radon or any hazardous materials or harmful or toxic substances, Seller makes no representations or warranties with respect to the accuracy or completeness, methodology of preparation or otherwise concerning the contents of such reports;
(vi) To Seller’s actual knowledge, the list of the Contracts attached hereto as Exhibit “G” is complete in all material respects as of the date hereof;
(vii) To Seller’s actual knowledge, except for those tenants in possession of the Property under written leases for space in the Property, as shown on the tenant list attached hereto as Exhibit “H” (the “Tenant List”), there are no parties in possession of, or claiming any possession to, any portion of the Property;
(viii) Seller is a limited liability company, duly organized and validly existing under the laws of the State of Delaware and is in good standing under the laws of the State of Delaware.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fix) Seller is ornot a “foreign person”, as that term is defined in Section 1445 of the Closing Date will beInternal Revenue Code of 1986, the owner of fee simple, marketable title to the Property.as amended;
(g) None of the lots are located in a flood plain area.
(hx) No improvements leasing commissions are payable by the “landlord” or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full “lessor” under any Space Lease, except as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs set forth on the Property on behalf of Seller Tenant List or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those otherwise disclosed in writing to Purchaser during the Feasibility Period.prior to Closing; and
(kxi) All labor performed and materials supplied for Seller is not now nor shall it be at any time prior to or at the Property have been fully paid by SellerClosing an individual, and corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any person for such labor agency or materials may claim no mechanic's lien political subdivision thereof, or any other lien.
form of entity (lcollectively, a “Person”) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would named in any way adversely affect executive orders or lists published by the PropertyOffice of Foreign Assets Control, or the successful operation Department of the PropertyTreasury (“OFAC”) as Persons with whom a United States citizen may not transact business or must limit their interactions to types approved by OFAC. For purposes of this Agreement, except as specifically provided all references to Purchaser in writing during “Seller’s actual knowledge”, “the Feasibility Periodknowledge of Seller” or any similar reference shall be deemed to refer to the current actual knowledge of W. Xxxxxx Xxxxx, Xx., without any special investigation or inquiry. All of the Seller’s foregoing representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity expressly shall survive the Closing for a period of one eight (18) months. Notwithstanding anything to the contrary contained in this Agreement, in the event that Purchaser or its agents, employees, representatives, contractors or consultants obtains knowledge prior to Closing that any of Seller’s representations or warranties were untrue when made in any material respect, or if Seller has delivered or made available to Purchaser information with respect to the Property at any time prior to the Closing Date (as hereinafter defined), and such information indicates that any such representations or warranties were not true when made in any material respect, then (i) yearPurchaser shall be deemed to have knowledge thereof (herein, “Deemed Knowledge”), (ii) such representation or warranty automatically and without further action shall be deemed to be qualified by such Deemed Knowledge, and (iii) Purchaser’s sole and exclusive remedy as a result thereof shall be to terminate this Agreement and receive a refund of the Xxxxxxx Money (thereby waiving any and all rights and remedies otherwise available to Purchaser with respect to such breach of which Purchaser has Deemed Knowledge), and thereafter, Purchaser and Seller shall have no further rights or obligations under this Agreement except for the Surviving Obligations. If, notwithstanding that Purchaser has Deemed Knowledge of any such matter, as aforesaid, Purchaser nevertheless elects to close the transaction contemplated by this Agreement, then Purchaser shall be deemed to have waived any and all rights and remedies otherwise available to Purchaser with respect to such breach of which Purchaser has Deemed Knowledge, which waiver expressly shall survive Closing. Notwithstanding anything in this Agreement to the contrary, it is expressly agreed and understood that the maximum aggregate liability of Seller under this Agreement with respect to any and all claims or causes of action arising following Closing as a result of a breach by Seller of any representation or warranty contained in this Agreement in no event shall exceed the sum of Three Hundred Fifty-two Thousand Five Hundred and No/100 Dollars ($352,500.00), in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Seller’s actual knowledge to Purchaser thatas of the Date of Acceptance:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire A. Seller is the Property or any part thereof.
(b) Seller has received no written notice sole and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge absolute owner of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it good and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the PropertyReal Estate. Upon consummation of the Closing, Purchaser shall have good and marketable title to the Real Estate free and clear of all liens, claims, and encumbrances.
(g) None B. There are no pending or, to Seller’s knowledge, threatened condemnation or eminent domain proceedings against all or any part of the lots are located in a flood plain areaReal Estate by any entity.
(h) No improvements C. There are no notices, suits, or repairs have been made judgments relating to violations of fire, zoning, building, health, or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Dateother applicable codes, laws, and there will be no outstanding bills incurred for laborordinances, services and materials used or, to Seller’s knowledge, any other matters, which may result in making improvements an obligation or repairs on liability of Purchaser after Closing or, to Seller’s knowledge, which have created or might in the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind future create a lien against the PropertyReal Estate, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county that have not been corrected or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility PeriodPurchaser, nor are there any threats thereof which are known to Seller.
(k) All labor performed and materials supplied for D. There is no litigation or proceeding pending or, to Seller’s knowledge, threatened against or relating to the Property have Real Estate that has not been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other liendisclosed to Purchaser in writing.
(l) E. There are no special assessments affecting the Real Estate in effect or, to Seller’s knowledge, contemplated.
F. No person or entity other than Seller has is entitled to use, possession, or occupancy of the Real Estate and, other than this Contract, no knowledge or information of any factsleases, circumstancesoptions, listing agreements, or other conditions, which do agreements granting or would in any way adversely affect the Propertygiving a right, or which may cause Seller to become obligated to grant or give a right, to use, occupy, be possessed of, or manage the successful operation of the PropertyReal Estate, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for or any and all losspart or parts thereof, damages, costs are executed or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearunder negotiation.
Appears in 1 contract
Samples: Real Estate Sale Contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller warrants and represents and warrants to Purchaser thatthe following:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) 7.1 Seller has received no written notice good, marketable and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning indefeasible leasehold interest in the Property, which free and clear of all liens, encumbrances, conditions, exceptions or reservations, except those specifically approved (or deemed approved) by Purchaser pursuant to this Agreement;
7.2 There are unpaid.
(d) no lawsuits or proceedings, including condemnation, environmental, zoning or land use proceedings, pending or, to Seller’s actual knowledge, threatened against or involving Seller or the Property; and Seller has no knowledge of and has not received no written notice any notices of any violation violations of lawany environmental, municipal or county ordinances or codeszoning, building code, land use or other legal requirements law or regulation with respect to the Property.
(e) The Property does not violate environmental laws applicable 7.3 That there is available legal ingress and egress to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of from a hazardous substance on publicly dedicated right-of-way or from an easement or similar right benefitting the Property.;
(f) 7.4 That Seller is orvalidly existing and in good standing under the laws of Delaware, as of the and all documents, including this Agreement, executed or to be executed by Seller which are to be delivered to Purchaser prior to or at Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made duly authorized, executed, and delivered by Seller, and are or will be legal, valid, and binding obligations of Seller sufficient to convey title (if they purport to do so), and do not or will not violate any provisions of any agreement to which the Seller is a party or to which it is subject; and that Seller has full right, power and authority, without the necessity, consent or approval of any other person or entity, to enter into this Agreement and to transfer the Property to Purchaser pursuant to the Property terms of this Agreement;
7.5 That, on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills outstanding contracts made or authorized by Seller for the Property for work or services with respect to the Property, including professionals such as architects, surveyors, engineers and planners, which have not been fully paid for; and Seller shall cause to be discharged all mechanics or materialmen’s liens arising from any labor or materials furnished to the Property prior to the Closing Date (other than resulting from any investigation or work undertaken by or on behalf of Purchaser);
7.6 That, to Seller’s actual knowledge, there are no existing or pending special assessments, fees, or other obligations affecting the Property or any appurtenant property, including without limitation, impact fees, solid waste fees, reservation fees, aid-in-construction fees, utility connection fees, sewer or water assessments, fees for past due taxes roadway and traffic improvements, or assessments other developmental obligations which may be assessed by any governmental or quasi-governmental authority, water or sewer authority, solid waste authority, drainage district, street lighting district, or any other special taxing district, nor does Seller have any actual knowledge of any naturepending or proposed assessment for public improvements which might result in such being contemplated. Seller shall be liable for any assessments affecting the Property that are certified, confirmed, or ratified prior to the Closing Date and that are not eligible to be passed through to the Property tenants pursuant to the terms of such tenants’ leases;
7.7 That except as otherwise set forth in this Agreement, Seller has entered into no other contracts for the sale or lease of, nor given any option to purchase or lease, all or any portion of the Property (or, if such option to purchase or lease has been granted, Seller has satisfied the conditions with respect thereto so that Closing may occur); nor, except as set forth in Section 10.4, has Seller entered into any contracts, leases or use agreements with respect to any portion of the Property which will survive the Closing and shall not do any of the foregoing prior to Closing without the express written consent of Purchaser in every instance.
7.8 That Seller is not a “foreign person”, as defined in the Foreign Investment Real Property Tax Act (“FIRPTA”). At Closing, Seller shall execute and deliver to Purchaser a “Non-Foreign Certificate”, in customary form, which shall state, among other items, the taxpayer identification numbers of Seller and that Seller is not a “foreign person”, as defined by FIRPTA. Seller acknowledges that, in the event Seller fails to deliver the Non-Foreign Certificate, Purchaser shall be authorized to withhold from the closing proceeds an amount equal to ten percent (10%) of the gross amount of the Purchase Price and to remit the same to the Internal Revenue Service, as required by FIRPTA;
7.9 That, to Seller’s actual knowledge, the Property has not during Seller’s period of ownership, and is not presently being used, and shall not be used prior to Closing, for the handling, storage, transportation, or disposal of hazardous or toxic materials or waste, as the same are defined by applicable local, state or federal environmental laws and regulations; provided that this representation and warranty shall not apply to the handling upon the Property in the past of medical wastes. Furthermore, to Seller’s actual knowledge, any pavingsuch medical wastes under Seller’s possession or control have been properly handled and disposed of in accordance with all applicable laws, sidewalkrules and regulations; and
7.10 Seller represents that attached hereto as Exhibit “1.4” is a list of all leases affecting the Property, curbingincluding all amendments and modifications to any leases affecting the Property; and Seller has delivered true, watercorrect and complete copies of such leases to Purchaser. Each of the Leases is in full force and effect, sewerand no tenant has defaulted under its Lease. Seller is “landlord” or “lessor” under the Leases and is entitled to assign to Purchaser, street improvementswithout the consent of any party, other utilities the Leases. To Seller’s actual knowledge, there are no defaults or no facts which, with the passage of time or the giving of notice, would result in defaults thereunder. Seller further represents that: (i) no tenant has asserted any claim of offset or other services defense in respect of its or Seller’s obligations under its respective Lease; (ii) except with respect to Leasing Costs arising under the Master Lease which have not been triggered as of the Effective Date (“Master Lease Future Leasing Costs”), there are no pending or incomplete tenant improvements and no unsatisfied Leasing Costs, with respect to the Master Lease or any Lease, except as listed on Exhibit 7.10, and all such Leasing Costs shall be fully completed and paid in full prior to Closing, or, if not completed or paid in full as of Closing, the then balance of such outstanding Leasing Costs shall be paid or credited to Purchaser at Closing; (iii) to Seller’s actual knowledge, no tenant has (A) filed for bankruptcy or taken any similar debtor-protection measure, (B) discontinued operations at the Property, or (C) given notice of its intention to do any of the foregoing (items (i) through (iii) above are hereinafter referred to as the “Tenant Estoppel Matters”). In addition, Seller represents that no rents have been prepaid more than one (1) month in advance thereunder. Seller will not modify, terminate or accept any prepayments under the Leases unless Purchaser consents thereto in advance in writing in each instance. Additionally, Seller will not enter into any new Leases prior to Closing without the prior written consent of Purchaser in each instance, as provided for the benefit in Section 10.3.
7.11 Seller has delivered to Purchaser a complete copy of the Ground Lease and all amendments thereto. Seller on is “tenant” or “lessee” under the Property Ground Lease and is entitled to assign to Purchaser the Ground Lease. Seller has not asserted any claim of offset or other defense in respect of its obligations under the Ground Lease. To Seller’s actual knowledge, (A) Ground Lessor is not in default under the Ground Lease and (B) there exists no condition or circumstance or written notice of any kind condition or circumstance which, with the giving of notice or passage of time, would constitute a default under the Ground Lease by Ground Lessor. Seller further represents that to Seller’s actual knowledge: (i) the Ground Lease is in full force and effect; (ii) Seller is not in default under the Ground Lease and there exists no condition or circumstance or written notice of any condition or circumstance which, with the giving of notice or passage of time, would constitute a default under the Ground Lease by Seller; (iii) Ground Lessor has not asserted any claim of offset or other defense in respect of its obligations under the Ground Lease; and (iv) neither the fee simple interest in the Land nor Ground Lessor’s interest in the Ground Lease is subject to any deed of trust, mortgage or collateral assignment (items (i) through (iv) above are hereinafter referred to as the “Ground Lease Estoppel Matters”).
7.12 Seller has delivered or made available to Purchaser a complete copy of the Master Lease Agreement between Seller and Pocatello Hospital, LLC (“Master Lessee”), dated November 1, 2006, including all amendments thereto (the “Master Lease”). The Master Lease is in full force and effect. Seller is “landlord” or “lessor” under the Master Lease and is entitled to assign to Purchaser the Master Lease. To Seller’s actual knowledge, (i) Master Lessee is not in default under the Master Lease and (ii) there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default by Master Lessee under the Master Lease. Seller has not asserted any claim of offset or other defense in respect of its obligations under the Master Lease. Seller further represents that to Seller’s actual knowledge: (i) Seller is not in default under the Master Lease and there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default by Seller under the Master Lease; and (ii) Master Lessee has not asserted any claim of offset or other defense in respect of its obligations under the Master Lease (items (i) and (ii) above are hereinafter referred to as the “Master Lease Estoppel Matters”).
7.13 Seller has delivered or made available to Purchaser true and complete copies of all contracts to which Seller is a party and which affect the Property. Seller has not, within the last year, received any written notice of any default under any Property service contract or other such contract or agreement that has not been cured or waived.
7.14 Seller has not received any written notice from, and, to Seller’s actual knowledge, is otherwise aware of no grounds for, any association, declarant or easement holder requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any other restrictions or covenants recorded against the Property, other than those items which are pro-rated in connection with Closing.
(j) 7.15 Seller has made not received any written notice from, and, to Seller’s actual knowledge, is otherwise aware of no representations grounds for, any governmental agency requiring the correction of any condition with respect to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, exceptor any part thereof, if anyby reason of a violation of any applicable federal, for state, county or municipal law, code, rule or regulation (including those disclosed in writing to Purchaser during respecting the Feasibility PeriodAmericans With Disabilities Act), which has not been cured or waived.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) 7.16 Seller has no actual knowledge or information of any facts, circumstances, or other conditionsconditions that are inconsistent with the representations and warranties contained herein. Seller shall promptly inform Purchaser in writing if there occurs any (i) material adverse change in the condition, which do financial or would in any way adversely affect otherwise, of the Property, or the successful operation thereof, at any time prior to Closing or (ii) if any information, document, agreement or other material delivered to Purchaser is amended, superseded, modified or supplemented. As used herein, “to Seller’s knowledge” shall be deemed to mean the actual knowledge of Xxxxxx Xxxxxxx, property manager. Seller represents and warrants to Purchaser that Xxxxxx Xxxxxxx is the person most familiar with the Property and most knowledgable with respect to the matters contained in the representations and warranties set forth herein. Purchaser represents that it is a limited liability company validly existing and in good standing under the laws of the PropertyState of Delaware, except and all documents, including this Agreement, executed or to be executed by Purchaser, which are to be delivered to Seller prior to or at Closing, have been or will be duly authorized, executed and delivered by Purchaser and are or will be legal, valid and binding obligations of Purchaser, and will not violate any provisions of any agreement to which Purchaser is a party or to which it is subject; and that Purchaser has full right, power and authority, without the necessity, consent or approval of any other person or entity, to enter into this Agreement and perform its obligations hereunder. It is a condition precedent of Purchaser’s and Seller’s obligations to close hereunder that all of the representations and warranties of the other party contained in this Agreement shall continue to be true in all material respects as specifically provided of the Closing Date and said representations and warranties shall be deemed to Purchaser in writing during be restated and affirmed as of the Feasibility PeriodClosing Date, as if first made on the Closing Date, without the necessity of the execution of any document with regard thereto. All of the representations and warranties of Seller shall be true contained in this Agreement and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity each party’s liability therefor shall survive the Closing for a period of one twelve (112) yearmonths. Notwithstanding the foregoing, Purchaser agrees that Seller’s representations and warranties with respect to the Tenant Estoppel Matters, Ground Lease Estoppel Matters, and Master Lease Estoppel Matters shall not survive Closing. In the event that any representations or warranties should prove to be untrue prior to Closing, the party to whom the representations and warranties were given shall notify the party who gave the representations and warranties of any such misrepresentations or breach of warranty and such party shall have five (5) business days thereafter to cure such misrepresentation or breach of warranty. In the event any such misrepresentation or breach of warranty is not cured prior to the Closing Date, the aggrieved party may terminate this Agreement by giving written notice thereof to the other party and receive the Deposit plus interest or may pursue an action for damages if such misrepresentation or breach of warranty is discovered following the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No personA. The assets being sold pursuant to this agreement will be conveyed free of all claims, firmliens, restrictions, or entity (except as may be set forth in this Agreement) encumbrances and no party other than Seller or The Well LLC, a California corporation, has any rights in or right claims of ownership to acquire the Property or any part thereofassets being sold pursuant to this agreement.
(b) B. Seller has received paid all taxes, the failure to pay of which would materially and adversely affect the Business and the assets transferred.
C. There are no written notice judgments, claims, liens, or proceedings pending against Seller, the Business, or the assets being sold, and has none will be pending at closing. To the best of Seller's knowledge, there is no knowledge basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against it or the Business, nor any pending or threatened claim or charge that would materially impair or prevent the Buyer’s operation of the Business, or materially impair the value of the assets transferred.
D. There have been no material adverse changes in the conduct or condition of the Business since June 29, 2012 or the date of any actual or threatened actiondisclosure of information by Seller to Buyer, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Propertywhichever is more recent.
(c) Seller has received no written notice E. All business and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements financial information previously given to Buyer with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used operation of the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, Business were accurate in all material respects as of the Closing Date date on which such information was delivered.
F. Until the conveyance of the assets to be sold hereunder, Seller will beoperate the Business in a manner consistent with past practice, and will use commercially reasonable efforts to maintain the goodwill of suppliers, customers, and all others having business relationships with the Business.
G. Seller is a corporation in good standing under the laws of the state of Delaware, with the right to do business in the state of California, and has (and at closing will have) the authority to perform the obligations contained in this agreement.
H. The corporate officer executing this agreement has the capacity and full authority to execute this agreement on the part of Seller, and all action required of Seller's Board of Directors required to give effect to this agreement has been taken.
I. To the best of Seller's knowledge, the owner of fee simpleassets set forth on Exhibits A, marketable title to the Property.
(g) None B1, B2 and C represent all of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf assets of Seller or necessary for services of architects, surveyors or engineers engaged Buyer to operate the Business in substantially the manner in which it has been operated by Seller.
(i) As J. Seller is in compliance in all material respects with all laws, ordinances, or regulations applicable to the operation of the Closing DateBusiness.
K. Seller is not delinquent or in default on any accounts or contracts related to the operation of the Business, there will be no unpaid bills or liens for past due taxes any other agreements or assessments liabilities that could give rise to a claim creating a lien against, or a cloud on the title of, the assets transferred.
L. Execution of this agreement does not conflict with, violate or constitute a default under the terms, conditions or provisions of any natureagreement to which Seller is a party, or violate any law, judgment, order or decree, and will not result in the creation of any liens or encumbrance on any of the assets transferred.
M. The Business presently has no employees. No employee, former employee, or independent contractor of Seller who participated in the operation of the Business has any outstanding claim for any pavingsalary, sidewalkwages, curbingbenefits, waterworkers' compensation, sewer, street improvements, other utilities or other services provided for the benefit of the compensation from Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied performing services for the Property have been fully paid Business prior to the closing. In the event that such a claim arises and is made against Buyer by Selleran employee, former employee or independent contractor of Seller relating to service to the Business prior to the closing, Seller will indemnify, defend, and hold Buyer harmless from and against any person for such labor or materials may claim no mechanic's lien or any other lienclaim, regardless of merit.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As Subject to the information disclosed by the Diligence Materials, Title Commitment, and Survey, Seller makes the following representations and warranties to Buyer as of the Effective Date and (unless a different date is specified), Seller represents and warrants except as may be disclosed in writing to Purchaser thatBuyer after the Effective Date) again as of the Closing Date:
(a) No personSeller is duly organized and validly existing and in good standing under the laws of its state of formation; and the execution, firm, delivery and performance of this Agreement and all Closing Documents to be executed and delivered by Seller pursuant to this Agreement are within the organizational power of Seller and have been or entity (except as may will prior to Closing be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereofduly authorized.
(b) Seller has received no written notice and has no knowledge not filed any voluntary petition in bankruptcy or suffered the filing of any actual involuntary petition by Seller’s creditors or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect suffered the appointment of a receiver to take possession of the Property.
(c) There are no actions or proceedings pending or, to Seller’s knowledge, threatened against Seller has received no written notice that Seller reasonably expects would affect the validity or enforceability of this Agreement or any of the Closing Documents to be executed and has no knowledge of any governmental assessments concerning the Property, which are unpaiddelivered by Seller pursuant to this Agreement.
(d) To Seller’s knowledge, there are no leases, license agreements or occupying agreements (or any amendments or supplements thereto) to which Seller is a party that will bind or encumber the Property following Closing.
(e) Seller has no knowledge of and has not received no written notice of any violation currently pending or threatened Condemnation of law, municipal all or county ordinances any portion of the Property.
(f) Seller has not received written notice of any litigation that is currently pending or codes, or other legal requirements threatened against Seller with respect to the Property.
(eg) The Property does not violate environmental laws applicable to it and Except as may be set forth in any document recorded against the Property, Seller has not used the Property for the generation, storage granted any option or handling right of hazardous materials or contaminants and there has been no release first refusal to any party to acquire Seller’s ownership interest in any portion of a hazardous substance on or from the Property.
(fh) Seller is orhas not received any written notice from any Governmental Authority with jurisdiction regarding any pending or threatened claims, complaints or requests for information with respect to any violation or alleged violation of Hazardous Materials laws at the Property. To Seller’s knowledge, except as may be disclosed in any Diligence Materials Seller may deliver to Buyer, no portion of the Closing Date will beProperty contains any Hazardous Materials which may require any cleanup, remediation or other corrective action pursuant to the owner applicable laws, rules, or regulations of fee simpleany Governmental Authority. Seller has not and, marketable title to the best of Seller’s knowledge, except as may be disclosed in any Diligence Materials Seller may deliver to Buyer, no other person or entity has, used any portion of the Property, nor permitted any other person or entity to use the Property for the purpose of storage, generation, manufacture, disposal, transportation or treatment of any Hazardous Materials in violation of applicable laws, rules, and regulations. Seller has not installed any underground storage tanks on the Property.
(gi) None Seller has not received any written notice from any person, authority, or agency having jurisdiction over the Property or Seller with regard to the violation in any material respect of any applicable law, regulation, code, ordinance, requirement, covenant, condition, or restriction relating to the Property or the present use or occupancy of the lots are located in a flood plain areaProperty.
(hj) No improvements There are no unrecorded commitments or repairs have been made agreements to which Seller is a party that would require Buyer to pay any money or will be made to the Property on behalf perform any obligation or that would otherwise affect Buyer’s ownership and use of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated any commitments or agreements contained in connection with Closing.
(j) any Diligence Materials Seller has made no representations may deliver to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility PeriodBuyer.
(k) All labor performed and materials supplied for Seller has not received written notice of any latent defects relating to the Property have been fully paid by Seller, physical condition of the Property. For purposes of this Agreement and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information Closing Documents, whenever the phrases “to the best of any facts, circumstances, or other conditions, which do or would in any way adversely affect the PropertySeller’s knowledge”, or the successful operation “knowledge” of Seller or words of similar import are used, they shall be deemed to refer to the current, actual, conscious knowledge only, and not any implied, imputed or constructive knowledge, without any independent investigation having been made or any implied duty to investigate, of Xxxxxx X. Xxxx. Such individual will have no personal liability under this Agreement or otherwise with respect to the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the The representations and warranties of Seller set forth in this Section 11 shall constitute continuing representations and warranties and shall be deemed to be true and correct as of the Closing Date date of closing of Buyer’s purchase of the Property and are subject to Section 25, below. Seller shall re-certify agrees to indemnify, defend and hold harmless Buyer from and against any and all liabilities, claims, suits, judgments, damages, expenses, losses, diminution in value, fees, penalties, fines and costs (including, without limitation, reasonable attorneys’ fees and reasonable attorneys’ fees on any appeal), judgments, proceedings and causes of action of any kind whatsoever, arising out of or in any way connected with Seller’s breach of the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearset forth in this Section 11.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatto the best of Seller’s knowledge, which for purposes of this section shall refer to the actual knowledge of Xxxxxxx X. Xxxxxxx, Associate Counsel - Director Real Estate Law and/or Xxxxxxx Xxxxx - Vice President Franchising, without the benefit of nor obligation to make an independent investigation, as follows:
(a) No persona. Seller has and, firmat the time of Closing, will have good and indefeasible fee simple title to the Real Estate, free and clear of any and all encumbrances and title exceptions other than the Permitted Exceptions.
b. There are no adverse parties in possession of the Real Estate or entity (except any part thereof and no parties in possession of any portion of the Real Estate as may be set forth in this Agreement) lessees, tenants at sufferance or trespassers; and no party has been granted any rights in license, lease or other right relating to acquire the Property use or possession of the Real Estate.
c. There is no pending or threatened condemnation or similar proceeding affecting the Real Estate or any part thereof, nor is any such proceeding contemplated by any governmental authority.
(b) d. There is no pending or threatened litigation, actions or proceedings against Seller arising out of Seller’s ownership of the Real Estate which could adversely affect the ability of Seller to perform any of its obligations hereunder or the use of the Real Estate by Purchaser.
e. Seller has not received no written notice and has no knowledge from any governmental, quasi-governmental agency or owner association requiring the correction of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements condition with respect to the Propertyowner association requiring the correction of any condition with respect to the Real Estate, or any part thereof, by reason of a violation of any federal, state, county or city statute, ordinance, code, rule or regulation or stating that any investigation has been commenced or is contemplated regarding any of the foregoing.
(e) The Property does not violate environmental laws applicable to it and f. Seller has not used full power and authority to enter into this Contract and to perform its obligations under this Contract. The execution, delivery and performance of this Contract and the Property for transactions contemplated hereby have been duly authorized and approved and no other actions or proceedings on its part are necessary to authorize the generationexecution, storage delivery or handling performance of hazardous materials or contaminants this Contract. This Contract constitutes the legal, valid and there has been no release binding obligations of a hazardous substance on or from the PropertySeller enforceable in accordance with its terms.
(f) g. Seller is ornot a foreign person as defined in Section 1445 of the Internal Revenue Code of 1986, as of the Closing Date will besame may have been or may hereafter be amended, or the owner of fee simple, marketable title to the Propertyregulations promulgated thereunder.
(g) None h. Seller is in possession of all licenses, permits and other governmental approvals necessary to operate a "Steak N Shakeæ restaurant at this location. Purchaser’s obligation to close this Contract shall be contingent on the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property above representations and warranties also being true and correct on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Contract for the Purchase and Sale of Real Estate (Steak & Shake Co)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(bi) Seller has received the full right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under this Agreement,
(ii) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iii) there is no written notice and existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(iv) Seller has no knowledge of of, and has not received any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of, any violation of any governmental assessments requirements (including “Environmental Requirements”, as defined below) concerning the Property, which are unpaid.have not been remedied,
(dv) Seller has no knowledge of of, and has received no written notice of any violation of lawnot received, municipal or county ordinances or codes, or other legal requirements with respect to the Property., written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(evi) The Property does not violate environmental laws applicable to it the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and Seller has not used complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property for the generationProperty, storage or handling of hazardous materials or contaminants and there has been are no release of a hazardous substance on or from other such agreements affecting the Property.,
(fvii) Seller is ornot a “foreign person” within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended,
(viii) except for those tenants in possession of the Closing Date will beProperty under written leases for space in the Property, as shown on the rent rolls attached hereto as Exhibit “F” (collectively, the owner “Rent Rolls”), there are no parties in possession of, or claiming any possession to, any portion of fee simple, marketable title to the Property.,
(gix) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the at Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes claims in connection with any repair of the Property by or assessments on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Rolls (which are effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, are and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than those reflected on such Rent Rolls,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof, and all other information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects,
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at or adjacent to the Property,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any naturework or alterations with respect to the Property, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or other services provided for the benefit of the Seller on the Property insurer,
(xiv) there are no employment agreements of any kind against to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Property, other than those items which are pro-rated in connection with Closing.,
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(lxv) Seller has no knowledge or information of any factsmaterial defects in the drainage systems, circumstancesfoundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and to the best of Seller’s knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvi) to the best of Seller’s knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys, and
(xvii) to the best of Seller’s knowledge, there are no underground storage tanks located on or under the Property, there are no conditions on, at or relating to the Property which are in non-compliance with “Environmental Requirements” (as defined below), and there are no “Hazardous Materials” (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other conditionspetroleum hydrocarbons; (v) asbestos and asbestos containing materials, which do or would in any way adversely affect form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the successful operation use of the Property, except as specifically provided relating to Purchaser in writing during pollution, the Feasibility Period. All protection or regulation of human health, natural resources, or the representations and warranties environment, or the emission, discharge, release or threatened release of Seller shall be true and correct as of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all lossenvironment (including, damageswithout limitation, costs ambient air, surface water, ground water or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearland or soil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
(a) No person, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
(b) Seller has received no written notice and has no knowledge of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, agency which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, Property which are unpaid.
(d) Seller has and has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller the Property has not been used the Property by Seller for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lienlien may be claimed by any person for such labor or materials.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, conditions which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify recertify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Real Estate Sale and Purchase Agreement (Rainwire Partners Inc /De/)
Seller’s Representations and Warranties. As Seller hereby makes the following representations and warranties to Buyer as of the Effective Execution Date, and acknowledges Buyer’s reliance thereon, and between the Execution Date (unless a different date is specified)and the Closing Date, Seller represents shall take no actions that would render the representations and warrants warranties made by Seller to Purchaser thatBuyer untrue as of the Closing Date:
(a) No personSeller is a limited liability company duly organized, firm, or entity (except as may be set forth validly existing and in good standing under the laws of the State of Delaware and is properly registered to do business in the State of Michigan. Seller has full power and authority to enter into this Agreement and consummate the transactions on its part contemplated hereby. The execution and delivery of this Agreement) has any rights in , and the sale, transfer and other actions contemplated hereby have been duly authorized by the managing member of Seller, which is the only approval required of Seller. Neither the execution and delivery of this Agreement nor the consummation of the transactions herein by Seller constitute a violation or right to acquire the Property breach of applicable law or any part thereofof Seller’s Certificate of Formation or Operating Agreement.
(b) There are no claims, actions, suits or proceedings pending or threatened against or affecting Seller, the Business and/or the Assets, or any portion thereof, nor are there any actions or proceedings by any federal, state, county or municipal department, commission, board, bureau, agency or other governmental instrumentality. Seller has received no written notice and has no knowledge is not in default with respect to any order, writ, injunction or decree of any actual or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity court or governmental agencydepartment, commission, board, bureau, agency or instrumentality, which would affect involves the Propertypossibility of any judgment or liability which may result in any material adverse change in the financial condition of Seller, the Business and/or the Assets.
(c) Seller has received There are no written notice and has no knowledge attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under any governmental assessments concerning the Property, which are unpaidother debtor relief laws contemplated by or pending or threatened against Seller.
(d) Seller has no knowledge and will carry on the Business in substantially the same manner as it has previously been carried on. Seller shall not enter into any contract, commitment or transaction other than in the ordinary course of and has received no written notice business. Seller shall not do any act or omit to do any act, or permit any act or omission to act, that will cause a material breach of any violation of lawmaterial contract, municipal commitment or county ordinances or codes, or other legal requirements with respect to the Propertyobligation by which it is bound.
(e) The Property does Seller neither owns, has in existence, has any rights or interest in or to, nor uses in the Business or in conjunction with the Assets:
(i) any trademark or any copyright, invention, letters patent or application for letters patent that have not violate environmental laws applicable been licensed to it and Seller has not used the Property Buyer; or
(ii) any contract or commitment for the generationfuture purchase of, storage or handling of hazardous materials or contaminants payment for, machinery and there has been no release of a hazardous substance on or from the Propertyequipment.
(f) This Agreement constitutes a legally binding obligation of Seller enforceable in accordance with its terms and conditions. The execution and delivery of this Agreement and the performance by Seller will not conflict with, result in a breach of, or cause a default under any agreement, order of court or other restriction to which Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Propertysubject or by which Seller is bound.
(g) None Seller has not contracted and shall not contract to sell or transfer to any third party all or any part of the lots are located in a flood plain areaAssets.
(h) No improvements Seller has filed or repairs caused to be filed all federal, state and local tax returns, and reports of Seller that are due and required to be filed and has paid or caused to be paid all taxes due and any assessment of taxes received, except taxes or assessments that are being contested in good faith and have been made adequately reserved against. All taxes, statutory contributions and payroll that may be or become due and payable, of whatever nature, whether due and owing either as a result of operations of Seller through and including the Closing Date or as a result of this transaction, have been or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there Seller will be have good and marketable title to each Asset, free and clear of all liens, mortgages, security interests, encumbrances and liabilities, and all Assets are in good repair and condition and are suitable and sufficient for the conduct of the Business, and shall remain so through the Closing Date, normal wear and tear excepted. There are no unpaid bills or liens for past due taxes or assessments of any naturemortgages, for any pavingsecurity interests, sidewalkloans, curbing, water, sewer, street improvements, other utilities interest rate swaps or other services provided for financial obligations of Seller (the benefit of the Seller on the Property of any kind against the Property, “Financial Obligations”) other than those items which are pro-rated in connection with Closingset forth on Exhibit D, and the Financial Obligations shall be terminated at Closing if not already terminated prior thereto.
(j) Seller has made no representations to not adopted any county or local authorities or retirement plan under the Employee Retirement Income Security Act of 1974, as amended, and is not a member of any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Periodcontrolled group under said Act.
(k) All labor performed Seller has materially complied with all Federal, Michigan, Oakland County and materials supplied for the Property have been fully paid by Seller, municipal (and any person for such labor or materials may claim no mechanic's lien or any other lienagency thereof) laws, statutes, ordinances, rules, regulations and/or orders.
(l) In regard to the real property to be conveyed by Seller to Buyer as part of the assets:
(i) As of Closing, there are no adverse or other parties in possession of any part of the real property or any lessees, tenants at sufferance or trespassers thereof or thereon, or which have been disclosed by survey.
(ii) Seller has no knowledge or information and has not received notice of any factspending or threatened condemnation or similar proceeding or assessment affecting the real property (sidewalks, circumstancessewers, other similar capital improvements) or any part thereof, nor to the knowledge, information and belief of Seller is there any such proceeding or assessment contemplated by any governmental authority.
(iii) Seller has received no legal notices to the effect that Seller, or other conditionsany use of the real property, which do violated or would has violated any applicable laws, codes, ordinances, regulations, statutes, rules and restrictions relating to the real property and/or the use thereof. Seller has not implicated the real property, or any portion of the real property, in any violation of any local, state or federal environmental law, regulation or permit as applicable thereto. There is no claim, governmental proceeding, adverse notice, judgment, cause of action, special assessment, or charge pending, whether asserted or unasserted, against or related in any way adversely affect to any portion of the Propertyreal property, or to Seller, with respect to the successful operation real property or any portion thereof, as a result of any violation of any local, state or federal environmental law, regulation or permit.
(iv) As of the PropertyClosing, without the express written consent of Buyer, no work will have been performed or will be in progress at the real property and no materials will have been delivered to the real property that might provide the basis for a mechanic’s, materialman’s or other lien against the real property or any portion thereof which is not dismissed or bonded off as of the relevant date; and Seller will operate and maintain the real property, or cause the same to be operated and maintained, in a normal manner from the Execution Date through the Closing.
(v) Seller has received no legal process to the effect that any default or breach exists, or as of the closing will exist, under any of the covenants, conditions, restrictions, zoning, rights-of-way or easements affecting the real property or any portion thereof.
(vi) As of the Closing, there will not be any action, suit or proceeding pending against Seller or the real property or any portion thereof, or relating to or arising out of the ownership of the real property, by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality. Any such judicial proceedings of record will be finally dismissed and terminated prior to the Closing.
(vii) There are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under any other debtor relief laws contemplated by Seller, or pending against Seller or the real property.
(viii) After the date of this Agreement, Seller shall not create or voluntarily permit to be created any liens, easements or other conditions affecting any portion of the real property without the prior written consent of Buyer (such consent not to be unreasonably withheld) or as permitted herein.
(ix) The real property has a zoning classification that will permit the current activities of Buyer under its lease with Seller on the real property; and there exists no notice to Seller of any uncorrected violations of building, safety or fire ordinances.
(x) There shall be no leases or any other agreements giving any person or persons the right to use or occupy any portion or all of the real property and no person shall be in possession of the real property except Buyer.
(xi) Except as specifically provided set forth in this Agreement, Seller makes no representations or warranties as to Purchaser in writing during the Feasibility Period. All condition or suitability of the real property for any particular use or purpose and Buyer is purchasing and taking title to the real property “AS IS”, “WHERE IS” and “WITH ALL FAULTS”.
(m) The representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (ExOne Co)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), a) Seller hereby represents and warrants to Purchaser that:the City that the following are true statements as of the date of this Agreement and shall be true as of the date of Closing, and Seller agrees to deliver a certificate confirming that the following representations and warranties are true as of the date of the Closing.
(ai) No personSeller is an individual and has full power and authority to sell and convey the Real Property and to execute this Agreement and such other documents described herein to be executed by Seller.
(ii) Seller now has and will have at Closing good, firmmarketable and indefeasible title in fee simple to the Real Property subject to the Permitted Exceptions and no Party, except as herein set forth, has or shall have any right in, or entity to acquire, the Property.
(iii) At Closing, the Real Property shall be free and clear of all encumbrances except the Permitted Exceptions as may be set forth in this Agreement.
(iv) has At Closing, the Real Property shall be free from any rights in and all actions, suits, claims, assessments or right proceedings pending or, to acquire the knowledge of Seller, threatened that could materially adversely affect the ownership, operation, or maintenance of the Real Property or Seller’s ability to perform hereunder.
(v) To the best of Seller’s knowledge, the Property and Seller are not currently in violation of or subject to: (i) any part thereofexisting, pending or threatened investigation or inquiry by any governmental authority; or (ii) any remedial obligations under any Applicable Laws pertaining to health or the environment (hereinafter sometimes collectively called “Applicable Environmental Laws”), including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (”CERCLA”) and the Resource Conservation and Recovery Act of 1976, as amended (”RCRA”). Seller shall have no obligation to remove or take any action to cure or remediate any environmentally hazardous material from the Real Property if any environmentally hazardous material is found on the Real Property.
(vi) Seller does not have knowledge of any hazardous substances or solid wastes that have been disposed of or otherwise released on the Real Property. The terms “hazardous substance” and “release” shall have the meanings specified in CERCLA, and the terms “solid waste” and “disposal” or “disposed” shall have the meanings specified in RCRA; provided, to the extent that the laws of the State of Wyoming establish a meaning for “hazardous substance,” “release,” “solid waste,” or “disposal” that is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
(vii) There are no parties in possession of any portion of the Real Property, whether as lessees, tenants at sufferance, trespassers or otherwise.
(b) Seller shall not intentionally cause any of the representations and warranties contained herein to become materially incorrect, nor authorize any action which would do so. If subsequent to the execution of this Agreement and on or before Closing, Seller nonetheless has received no knowledge that any of the representations and warranties set forth herein have become incorrect in any respect (a “Discrepancy”), Seller shall promptly notify the City, in writing, of the occurrence of such event. The City shall have a right to approve or disapprove any such Discrepancy, which approval or disapproval shall be given by written notice delivered to Seller within ten (10) days prior to the Closing for the City to evaluate the effect of such Discrepancy. If the City waives such Discrepancy, and has no knowledge elects to acquire the Real Property, Seller’s representations and warranties contained herein shall be deemed to have been made as of any actual or threatened actionthe Closing, litigationsubject to the waived Discrepancy. If the City disapproves of the Discrepancy, rezoningand Seller fails to cure same, condemnation or proceeding by any personthen upon written notice thereof to Seller, entity or governmental agency, which would affect this Agreement shall be terminated and all rights and obligations of the PropertyParties hereunder shall terminate.
(c) Except for the representations of Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.set forth in Section 6 that shall survive for one
(d1) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or year from the Property.
(f) Seller is or, as of the Closing Date will beClosing, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the express representations and warranties of Seller made in this Agreement shall be true and correct as of the merge into any instrument or conveyance delivered at Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall not survive the Closing for a period of one (1) yearClosing.
Appears in 1 contract
Samples: Purchase Agreement
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified)Seller covenants, Seller represents and warrants to Purchaser that:
(a) No persona. Neither the execution of this Agreement nor the performance by Seller of Seller’s obligations under this Agreement, firmnor the conveyance of title nor the present use of the Premises is subject to the approval of a third party and none of the foregoing is or will be in violation of any law, or entity (except as may be set forth regulation or of instrument affecting the Premises;
b. The Premises is in this Agreement) has full compliance with all applicable laws, including environmental laws, and neither Seller nor any rights in or right to acquire the Property or any part thereof.
(b) agent of Seller has received no written any notice and issued by any governmental authority of a violation with respect to or affecting the Premises;
c. Seller has no knowledge of any actual or threatened actioncontemplated condemnation, litigationurban renewal or eminent domain or similar proceeding, rezoningor of any assessment or levy affecting the Premises;
d. Seller has disclosed to GMAC GRS all information regarding the physical condition of the Premises of which Seller has knowledge and Seller has not misstated or omitted any material fact with regard to any condition affecting the Premises that, condemnation or proceeding by any personif known, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(d) Seller has no knowledge of and has received no written notice of any violation of law, municipal or county ordinances or codesvalue of, or title to, the Premises;
e. All mechanical systems, including the plumbing, heating, air conditioning and electrical systems, and the appliances and other legal requirements Affixed Personal Property included in this sale are in working order, the roof does not leak and the basement does not leak. There are no cracks in the foundation. To the best of Seller’s knowledge, there is no urea formaldehyde foam insulation, asbestos, radon gas or other potentially hazardous substance in, under or on the Premises;
f. The structures on the Premises, including xxxxx and septic or sewer systems, comply with applicable codes and work properly. An adequate amount of water, safe and suitable for drinking, is supplied to the Premises;
g. The Premises are free from infestation by or damage from termites, dry rot, fungi and other wood destroying pests and organisms;
h. Seller and Seller’s heirs, executors, administrators and assigns have executed, or promptly upon request of GMAC GRS shall execute, any deed, affidavit, agreement or other document prepared by GMAC GRS or its agents as shall, in the judgment of GMAC GRS, be necessary or desirable to carry out the intent of this Agreement;
i. The Premises are insurable at standard rates;
j. Seller shall procure any additional assurance of title and will provide such further information and documentation as is deemed necessary by GMAC GRS or its title insurance agent;
k. Seller shall provide GMAC GRS with a current certificate of occupancy, Board of Fire Underwriters certificate and other documents required by local regulation, custom or practice with respect to the Property.occupancy or use of the Premises;
l. After executing this Agreement, Seller will not permit to exist any lien or encumbrance against the Premises, other than the Permitted Encumbrances;
m. As between Seller and GMAC GRS, Seller warrants that the Premises contain no defects which were not disclosed, in writing, by Seller to GMAC GRS. This paragraph is not intended, and shall not be construed, to bestow any rights upon a third-party buyer or any other third-party;
n. To the best of Seller’s knowledge: (e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(fi) Seller is or, as of the Closing Date will be, the owner of holds fee simple, marketable simple title to the Property.
Premises and has the right to convey the Premises, and (gii) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made title to the Property on behalf Premises is free and clear of all encumbrances, except for those Permitted Encumbrances disclosed by the title search obtained by GMAC GRS (“Known Permitted Encumbrances”). Seller during will warrant and defend the 90 days immediately preceding title to the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
Premises (i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided except for the benefit of the Seller on the Property of any kind Known Permitted Encumbrances) against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county claims of all persons claiming by or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by through Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations foregoing covenants, representations, and warranties of Seller shall be are true and correct as of the Closing Effective Date and Seller shall re-certify as of the representations and warranties on Vacate Xxxx. All of the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity foregoing covenants shall survive the Closing for a period of one (1) yearVacate Date.
Appears in 1 contract
Samples: Agreement for Domestic and Global Relocation Services (Talecris Biotherapeutics Holdings Corp.)
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser that:
that (a) No personSeller is the true, firm, or entity (except as may be set forth in this Agreement) has any rights in or right to acquire the Property or any part thereof.
lawful and exclusive owner of its Accounts; (b) each Purchased Account, to the best of Seller’ knowledge as of the Purchase Date, (i) is and will remain a bona fide existing obligation created by the sale and delivery of goods or services in the ordinary course of its business, (ii) is not owing by an Account Debtor that is an affiliate of Seller or in which Seller otherwise has an interest, (iii) is unconditionally owed as of the Purchase Date without any Dispute, and (iv) is not subject to any special terms of payment which are not shown on the face of the Invoice or contract with any Account Debtor therefor; (c) none of the Purchased Accounts arise from a sale directly to a consumer; (d) all amounts owing on the Purchased Accounts are owing in United States dollars and any taxes or fees relating to such Purchased Accounts are solely Seller’s responsibility; (e) prior to the sale of any Purchased Account to Purchaser, the Account Debtor on any Purchased Account is not subject to any bankruptcy or other insolvency proceeding, and Seller has not received no written notice notice, and has no knowledge is not otherwise aware, of any actual or threatened actionimminent bankruptcy, litigationinsolvency, rezoningor material impairment of the financial condition of any applicable Account Debtor regarding such Purchased Account; and (f) as of the Purchase Date, condemnation or proceeding by any personthe Purchased Accounts will be free and clear of all liens and security interests other than the security interests granted in favor of Purchaser. Seller further represents and warrants that (a) subject to the approval of the Bankruptcy Court, entity or governmental agencySeller is fully authorized to enter into this Agreement; (b) upon approval of the Bankruptcy Court, which would affect the Property.
this Agreement constitutes a legal and valid obligation that is binding upon Seller and that is enforceable against it; (c) Seller has received no written notice is in good standing in the jurisdiction of its organization and has no knowledge of any governmental assessments concerning the Propertyis duly qualified, appropriately licensed, and in good standing in each other jurisdiction in which are unpaid.
it is required to be licensed; and (d) Seller has there are no knowledge of and has received no written notice of any violation of lawpending actions, municipal or county ordinances or codessuits, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be made to the Property on behalf of the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property proceedings of any kind (whether civil or criminal) now pending (or, to its knowledge, threatened) against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lien.
(l) Seller has no knowledge or information the adverse result of any facts, circumstances, or other conditions, which do or would in any way adversely material respect affect the Propertyits property or financial condition, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) yearthreaten its continued operations.
Appears in 1 contract
Seller’s Representations and Warranties. As of the Effective Date (unless a different date is specified), Seller represents and warrants to Purchaser thatthe best of Seller’s knowledge and belief the following as of the date hereof and as of Closing:
(a) No personSeller is the owner of fee simple title to the Property;
(b) The Property is or at the time of Closing will be free and clear of all liens except for ad valorem taxes for the year of such Closing, firmnot yet due and payable, and for all subsequent years, and except for encumbrances to be released at such Closing. Further, there is no proceeding pending or being prosecuted for reduction of the assessed valuation, or taxes or other imposition with respect to all or any part of the portion of the Property, or for any special assessment liens against the same;
(c) There are no condemnation or eminent domain proceedings pending, or to the best of Seller’s knowledge, contemplated against the Property, or any part thereof, and Seller has received no notice of the desire of any public authority or other entity (except as may be set forth in this Agreement) has any rights in to make or right to acquire use the Property or any part thereof.
(bd) To the best of Seller’s knowledge, there are no threatened or pending suits or proceedings before any court, administrative agency, or other governmental instrumentality against or affecting Seller or any part of the Property which (i) do or could affect ownership, operation, use or occupancy of the Property, or any part thereof; or (ii) do or could prohibit or make unlawful the consummation of the transaction contemplated by this Contract, or render Seller unable to consummate the same;
(e) Seller has received no written notice of, and has to its knowledge there is no knowledge of violation of, any actual law, regulation, ordinance, order, restrictive covenant, or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect other requirement affecting the Property.;
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning the Property, which are unpaid.
(df) Seller has no knowledge of and has received no written notice any unrecorded easements, restrictions or encumbrances affecting all or any portion of any violation of law, municipal or county ordinances or codes, or other legal requirements with respect to the Property.
(e) The Property does not violate environmental laws applicable to it and Seller has not used the Property for the generation, storage or handling of hazardous materials or contaminants and there has been no release of a hazardous substance on or from the Property.
(f) Seller is or, as of the Closing Date will be, the owner of fee simple, marketable title to the Property.;
(g) None The consummation of the lots are located transactions contemplated hereunder will not violate or result in a flood plain area.breach of or constitute a default under any provision of any contract, lien, instrument, order, judgment, decree, ordinance, regulation, condominium declaration, or other restriction of any kind to which Seller or the Property is bound or affected;
(h) No improvements representation or repairs have been made warranty by Seller in this Contract or in any instrument, certificate or written statement furnished to Buyer pursuant hereto, or in connection with the transaction contemplated hereby, contains or will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading;
(i) There are no mechanics’ or materialmens liens against the Property, and if subsequent to Closing hereunder, any mechanics’ or other liens shall be made to filed against the Property as a result of any actions by or on behalf of the Seller, Seller during shall take such action, within thirty (30) days after the 90 days immediately preceding filing thereof, by bonding, deposit, payment or otherwise, in order to remove, transfer or satisfy such lien of record against the Closing Date which will not be paid for in full as of the Closing DateProperty, at Seller’s sole cost and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on expense;
(j) That Seller has inspected the Property on behalf and to the best of Seller its knowledge, information and belief after diligent inquiry, there is not located in, on, upon, over or for services of architects, surveyors or engineers engaged by Seller.
under the Property (i) As asbestos in any form, (ii) urea formaldehyde foam insulation, (iii) transformers or other equipment containing dielectric fluid which contains levels of polychlorinated biphenyls in excess of fifty parts per million, or (iv) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any federal, state, county, regional or local authority or which, even if not so regulated, is known to pose a hazard to the health and safety of any persons that now or may hereafter occupy the Property or property adjacent to the Property (hereinafter sometimes collectively called "hazardous waste"). Should any asbestos, urea formaldehyde foam insulation, transformers containing excessive levels of polychlorinated biphenyls, or other regulated materials, equipment, or substances described above be found in, upon, over or under the Property, Buyer hereby agrees that it shall immediately notify Seller; and upon receipt of such notice, Seller shall commence removal of same at Seller’s expense, which shall be completed within a reasonable time, in full compliance with any applicable governmental regulations and Closing shall be delayed until Seller’s environmental consultant shall certify to Buyer that the removal and any clean-up is complete and in full compliance with any applicable governmental regulations;
(k) There are no adverse parties in possession of the Closing DateProperty, there will be no unpaid bills or liens for past due taxes or assessments of any naturepart thereof and there are no parties in possession thereof except Seller, for and no party has been granted any pavinglicense, sidewalklease, curbing, water, sewer, street improvements, other utilities or other services provided right relating to the use or possession of the Property, provided, however, Buyer may agree to receive and Seller to convey a portion of the property subject to the Xxxxxx Mining Lease;
(l) There are no attachments, executions, assignments for the benefit of the creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws contemplated or filed by Seller on the Property of any kind or pending against Seller or the Property, other than those items which are pro-rated in connection with Closing.;
(jm) Seller has made There are no representations to any county contracts or local authorities other obligations outstanding for the sale, exchange or any homeowners in the community regarding the type or style of the development other transfer of the Property, except, if any, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the Property have been fully paid by Seller, and any person for such labor or materials may claim no mechanic's lien or any other lienportion thereof.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Seller’s Representations and Warranties. As The Seller makes the following representations and warranties, all of which shall be true and correct at the Effective Date (unless a different date is specified), Seller represents Closing and warrants to Purchaser thatwhich shall survive Closing:
(a) No personTo the Seller’s actual knowledge, firmand except as reflected in the Title Documents, there are no claims, actions, suits, or other proceedings pending or threatened or any governmental department or agency or any other corporation, partnership, entity (except as or person whomsoever, nor any voluntary actions or proceedings contemplated by the Seller, which in any manner or to any extent may be set forth detrimentally affect Buyer’s right, title or interest in and to the Property, or the Seller’s ability to perform the Seller’s obligations under this Agreement. As used in this Agreement, “To the Seller’s actual knowledge” shall mean the actual, present knowledge of the current City Manager of the City at the time of signing this Agreement without making any independent investigations or inquiries.
(b) The Seller has the full power and authority to enter into and perform this Agreement according to the terms hereof and the individuals executing this Agreement and all documents delivered pursuant to this Agreement on behalf of the Seller are authorized to do so.
(c) To the Seller’s actual knowledge, and except as reflected in the Title Documents, there are no agreements, commitments or understandings by or between the Seller and any third party pursuant to which the Seller or its successors in interest are required to convey, dedicate, sell or transfer any part of the Property or to grant any easement, water right, right-of-way, road or license in respect to any part of the Property.
(d) To the Seller’s actual knowledge, the Seller has not received any notices and the Seller is not otherwise aware that the Property was not or is not in compliance with all federal, state of Arizona and local laws, ordinances and regulations relating to environmental protection, occupational health and safety, public health and safety or public nuisance or menace (collectively “Environmental Laws”). To the Seller’s actual knowledge there has been no production, storage, transport, release, spillage or disposal upon the Property of any hazardous substances, hazardous waste, hazardous materials, toxic substances, contaminants, or any other substances declared to be hazardous or toxic under any Environmental Laws.
(e) To the Seller’s actual knowledge, there is no pending or threatened condemnation or similar proceedings affecting the Property or any part thereof and the Seller has no knowledge that any such proceeding is presently contemplated.
(f) This Agreement and all documents required hereby to be executed by the Seller are and shall be valid, legally binding obligations of, and enforceable against the Seller, in accordance with their terms.
(g) There are no persons in possession or occupancy of the Property or any part thereof, nor are there any persons who have possessory rights in or right respect to acquire the Property or any part thereof.
(bh) Except as otherwise expressly set forth in this Agreement and the Deed, neither the Seller has received no written notice and has no knowledge nor its officers, employees, agents, representatives, attorneys or contractors (collectively "Seller’s Parties") have made any representations, guaranties, promises, assurances or warranties, express or implied, to Buyer including, without limitation, any pertaining to the suitability of the Property for any actual purpose, the profitability of owning or threatened action, litigation, rezoning, condemnation or proceeding by any person, entity or governmental agency, which would affect the Property.
(c) Seller has received no written notice and has no knowledge of any governmental assessments concerning operating the Property, which are unpaid.
(d) Seller has no knowledge the physical or environmental condition thereof, the suitability, habitability or merchantability or fitness of and has received no written notice the Property for Buyer's intended use or for any use whatsoever, the rentals, income or expenses thereof, the net or gross acreage contained therein, the zoning thereof, the condition of title thereto, the existence or satisfaction of any violation local, state or federal approvals or permits for the development or use thereof, the availability or existence of lawwater, municipal sewer or county ordinances other utilities, the existence or codesnonexistence of any hazardous substances or materials in, on or under the Property, or other as to any past, present or future matter whatsoever. The Seller acknowledges and agrees that this disclaimer has been specifically negotiated and that the Property will be sold in the condition described in Section 6.01. Buyer acknowledges that it will have the opportunity to inspect the Property during the Feasibility Period, and during such period, observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and the Property and adjacent areas as Buyer deems necessary. Buyer hereby forever releases and discharges Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for matters relating to the physical, environmental or legal requirements compliance status of the Property, whether arising before or after the Effective Date, under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“CERCLA”), regarding the condition, valuation, salability, rentability or utility of the Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the Property.
(e) The Property does not violate environmental laws applicable presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to it be toxic, hazardous, undesirable or subject to regulation and Seller has not used that may need to be specially treated, handled and/or removed from the Property for the generationunder current or future federal, storage state and local laws, regulations or handling of guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous materials waste and Hazardous Materials on, under, adjacent to or contaminants and there has been no release of a hazardous substance on or from otherwise affecting the Property.
). Buyer further hereby waives its rights against the Seller (f) Seller is or, as of the and by Closing Date will be, the owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or this transaction will be made deemed to have waived) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property on behalf of is or may be subject, including, but not limited to, CERCLA) concerning the Seller during the 90 days immediately preceding the Closing Date which will not be paid for in full as of the Closing Date, physical characteristics and there will be no outstanding bills incurred for labor, services and materials used in making improvements or repairs on the Property on behalf of Seller or for services of architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills or liens for past due taxes or assessments of any nature, for any paving, sidewalk, curbing, water, sewer, street improvements, other utilities or other services provided for the benefit of the Seller on the Property of any kind against the Property, other than those items which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or local authorities or any homeowners in the community regarding the type or style of the development existing conditions of the Property, except, if anywhether arising before or after the Effective Date. Buyer further hereby assumes the risk of changes in applicable laws and regulations relating to past, for those disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed present and materials supplied for future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been fully paid revealed by Sellerits investigation. For purposes hereof, “Hazardous Materials” means “Hazardous Material,” “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any person for such labor other substances regulated because of their effect or materials may claim no mechanic's lien or any other lienpotential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, and infectious materials.
(l) Seller has no knowledge or information of any facts, circumstances, or other conditions, which do or would in any way adversely affect the Property, or the successful operation of the Property, except as specifically provided to Purchaser in writing during the Feasibility Period. All of the representations and warranties of Seller shall be true and correct as of the Closing Date and Seller shall re-certify the representations and warranties on the Closing Date and shall indemnify and hold harmless the other party for any and all loss, damages, costs or liabilities incurred due to the inaccuracy thereof. This indemnity shall survive the Closing for a period of one (1) year.
Appears in 1 contract
Samples: Purchase and Sale Agreement
