Seller’s Representations. Seller warrants and represents to Buyer as follows: 4.1.1 Seller is a limited liability company validly formed in the State of Delaware. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally. 4.1.2 Except for the rights of first refusal in favor of the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein. 4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”). 4.1.4 Neither Seller nor any of its Affiliates, and none of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities. 4.1.5 To Seller’s knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder. 4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder. 4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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. 4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report. 4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated. 4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10 (a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing. 4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing. 4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived. 4.1.13 Seller has not received any written notice from, and 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. 4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property. 4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived. 4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property. 4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants. 4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property. 4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations. Seller Each of COF and COF II warrants and represents to Buyer with respect to that portion of the Property owned by COF or COF II, as followsthe case may be, that the following matters are true and correct as of the Effective Date and the Closing Date:
4.1.1 Seller is a limited liability company validly formed in the State Commonwealth of DelawareVirginia. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or and/or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights Property. Seller is not a party to any outstanding right of first refusal in favor refusal, right of the Hospital, there are no outstanding rights of first refusal to purchase reverter or options option to purchase relating to the Property or any interest therein. Subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person during the term of Seller’s ownership of the Property.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, pending or, to the best of Seller’s knowledge, threatened threatened, against (ia) the Property or any portion of the Property, thereof; or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportProperty.
4.1.9 To 4.1.10 There is no pending or, to the best of Seller’s knowledge, there is no pending, threatened or contemplated contemplated, condemnation proceeding relating to the Property, and Seller has not received a any written notice from any governmental or quasi-governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies 4.1.11 To the best of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy copies of the Ground Lease. The Parcel that is ground leased pursuant all Property Contracts to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. which Seller is “tenant” or “lessee” under the Ground Lease a party and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To that are in Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.12 There are no tenant improvement allowances, non-monetary tenant improvement obligations of Landlord, leasing commissions and/or rent concessions with respect to the current term of the Leases, except as disclosed on Schedule 4.1.12 attached hereto.
4.1.13 Seller has not received any written notice from, and 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 best of a violation of any other restrictions or covenants recorded against the Property.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any material condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge4.1.14 The Rent Roll attached hereto as Exhibit C contains a list of all Leases affecting the Property as of the Effective Date. The Rent Roll is a copy of the rent roll that Seller relies upon and uses in the ordinary course of its business, there and Seller has no current actual knowledge that the Rent Roll is no pending or threatened requestuntrue, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that inaccurate and incomplete in any way affects or would affect the authorization material respect. The copies of the current use Leases (and operation other agreements with tenants) delivered or furnished and made available by Seller to Buyer pursuant to this Agreement constitute all of the Leases to which Seller is a party relating to the Property.
4.1.17 To 4.1.15 Seller has no actual knowledge, and has not received any written notice, that any “hazardous” or “toxic materials or pollutants” have contaminated or have been released upon the Property (nor does Seller have any current actual knowledge of any such contamination, release or use or storage of any “hazardous” or “toxic materials or pollutants” occurring on the Property at any time during Seller’s knowledgeownership thereof), the Property contains sufficient parking as such terms are defined in compliance with all applicable lawsany federal, ordinancesstate or local rule or regulation pertaining to environmental regulation, regulationsclean-up, restrictions, and covenants.
4.1.18 contamination or disclosure. Seller has not received any written notice from of the existence of any governmental authority Mold Condition on the Property. “Mold” means mold, mildew, fungus or other potentially dangerous organisms. “Mold Condition” means the presence or suspected presence of its intention Mold or any condition(s) that reasonably can be expected to revoke any certificate give rise to or indicate the presence of occupancyMold, licenseincluding observed or suspected instances of water damage or intrusion, the presence of wet or damp wood, cellulose wallboard, floor coverings or other materials, discoloration of walls, ceilings or floors, or permit issued in connection with any notice from a governmental agency of complaints regarding the indoor air quality at the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 3 contracts
Samples: Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a duly formed and validly existing limited liability company validly formed in partnership organized under the State laws of Delawarethe Commonwealth of Pennsylvania. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been (or shall be on or prior to Closing) duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To Seller’s knowledge, other than the Lease there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Lease, since it commenced ownership of the Property Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, and none of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, owners is a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or and approval of any a governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the Seller’s performance of its obligations hereunderhereunder with respect to the Closing herein described to occur except for the consent of the government tenant occupying the Property pursuant to the Lease.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither To the best of Seller’s knowledge, neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty to the best of Seller’s knowledge, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant LeasesLease and other occupancy agreements affecting the Property, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Dateif any. Each of the Tenant Leases The Lease is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without Lease. Neither Seller nor the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant the Lease and to the best of Seller’s knowledge there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of either Seller or the Tenant Leasesunder the Lease. To Seller’s knowledge, no The Tenant has asserted is not asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant the Lease, and there are no unresolved disputes relating to the calculation of additional rent under the Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any the Lease and no pecuniary obligation to Tenant Lease. No and brokers has vested or accrued and is owed by Seller, except that shall be fully completed and paid in full prior to Closing; provided, however, that Tenant has (i) made preliminary inquiries verbally to Seller regarding Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention willingness to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Leaseadd automatic front door openers to, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledgeremove reception area benches from, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under Property at the Ground Lease, or (iii) given its intention to do either of the foregoingTenant’s expense.
4.1.12 Seller has delivered or made available to Buyer The financial statements of Property operations provided by Seller, including, but not limited to, statements of revenue and expenses, balance sheets and statements of cash flow are true, correct and complete copies of in all Contracts used material respects. Such financial statements present fairly, in all material respects, the ordinary course of information contained therein for the periods indicated therein. All expenses associated with Property operations have been recorded in Seller’s business that affect the Propertygeneral ledger. Seller has not, within agrees to provide such other reasonable information requested by Buyer in writing provided such request may not delay the last year, received any written notice of any default under any Contracts that has not been cured or waivedClosing.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a duly formed and validly existing limited liability company validly formed in organized under the State laws of DelawareTexas. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no The authorization, consent, or and approval of any a governmental authority (including courts) is required for the execution and delivery by Closing herein described to occur. However, Seller will use its reasonable best efforts to obtain such approval within fifteen (15) days of the Effective Date of this Agreement or the performance of its obligations hereunderAgreement.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither To the best of Seller’s knowledge, neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty to the best of Seller’s knowledge, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer Lease and Seller prior to other occupancy agreements affecting the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing DateProperty. Each of the Tenant Leases The Lease is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the tenant’s consent of any party (other than consents required under the Ground Leasesubject to Section 4.1.5, above), the Tenant LeasesLease at Closing. Except as provided on Schedule 4.1.10, neither Neither Seller or any Tenant is nor the tenant shall be in default under its respective Tenant the Lease and at Closing there exists will exist no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of either Seller or the Tenant Leasestenant. To Seller’s knowledge, no Tenant has asserted The tenant is not asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant the Lease, and there are no unresolved disputes relating to the calculation of additional rent under the Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any Tenant Leasethe Lease and no pecuniary obligation to tenant and brokers has vested or accrued and is owed by Seller, except that shall be fully completed and paid in full prior to Closing.
4.1.12 The financial statements of Property operations provided by Seller, including, but not limited to, statements of revenue and expenses, balance sheets and statements of cash flow are true, correct and complete in all material respects. No Tenant has (i) to Such financial statements present fairly, in all material respects, the information contained therein for the periods indicated therein. All expenses associated with Property operations have been recorded in Seller’s knowledgegeneral ledger. Seller agrees to provide such other reasonable information requested by Buyer provided such request may not delay the Closing.
4.1.13 Seller agrees to make such further and other reasonable representations and warranties regarding the financial statements of the Property and the Seller, filed including, but not limited to representations and warranties related to statements of revenue and expenses, and Seller’s internal controls for bankruptcy the prevention and detection of fraud, as may be reasonably required of Seller by Buyer’s auditor. Seller further agrees to reasonably cooperate with Buyer’s auditor in connection with delivery of any audit opinions or taken comfort letters relating to audited financial statements prepared by Buyer’s Auditor and consents to the dissemination of any similar debtor-protection measuresuch audited financial statements, (ii) except opinions or letters as provided on Schedule 4.1.10may be required by Buyer or its auditor for any purpose, defaulted under its Tenant Leaseincluding but not limited to their inclusion in any registration statements, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Propertyprospectuses, or (iv) except as provided on Schedule 4.1.10similar documents in connection with syndications, given notice private placements or public offerings of its intention to do securities or interest by Buyer, or any of Buyer’s affiliates or assigns and any reporting requirements for the foregoingsame under applicable federal and state laws. All costs and expenses associated with any reports, opinions or letters required by this section shall be borne by Buyer.
4.1.11 4.1.14 Seller has delivered or made available to Buyer true and complete copies of all management and leasing contracts to which Seller is a complete copy of party and affecting the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementProperty and, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent best of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not all other contracts, agreements, documents, reports, materials and information that are in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.13 4.1.15 There are no debts or other liabilities or obligations relating to the Lease or the Property, including but not limited to tenant improvement costs and leasing commissions, vesting, accruing and/or arising prior to Closing which will be due or payable from or by Buyer.
4.1.16 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge4.1.17 Except as disclosed in the Property Information, there are no material defects in the structural elements of the Improvements and all Improvements improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledgeand, there is no material leak or material defect in any roof located upon the Property.
4.1.15 4.1.18 Seller has not received any written notice from, and Seller is not otherwise aware of any no grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there 4.1.19 The Property is properly zoned for its current use. There is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, ; there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 4.1.20 Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there 4.1.21 Seller has received no notice that the Property or any portion thereof contains any form of toxic mold.
4.1.22 There are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon the Close of Escrow hereunder, in existence on the Close of Escrow. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company company, validly formed in the State state of DelawareCalifornia. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for as set forth in the rights of first refusal in favor of the HospitalLeases, there are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase purchase, or similar rights or claims relating to the Property or any interest therein.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, and none of their respective constituent partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents owners is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledgeKnowledge, threatened against (ia) any portion of the Property, or (iib) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the executionThere is no pending or, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pendingKnowledge, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.9 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)Tenant’s consent, the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant each 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 under any of the Tenant Leasesat Closing. To Seller’s knowledgeKnowledge, no Tenant has asserted is asserting, and, to Seller’s Knowledge, no Tenant has, any claim of claim, offset or other defense in respect of its or Seller’s obligations under its respective Tenant any Lease. Except , nor is Seller in default as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do obligations under any of the foregoingLease.
4.1.11 4.1.10 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, true and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. management and leasing contracts to which Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, is a party and 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 affecting the Property.
4.1.14 To 4.1.11 Except as disclosed in the Property Information, to Seller’s knowledgeKnowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Propertyimprovements.
4.1.15 4.1.12 Seller has not received any written notice from, and Seller is not otherwise aware of any to Seller’s Knowledge there are no grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To 4.1.13 Except as disclosed in the Property Information, to Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, Knowledge there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: ; and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement, Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of Delaware. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or and/or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To the best of Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Lease, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, pending or, to the best of Seller’s knowledge, threatened threatened, against (ia) the Property or any portion of the Property, thereof; or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vi) O made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportProperty.
4.1.9 To 4.1.10 There is no pending or, to the best of Seller’s knowledge, there is no pending, threatened or contemplated contemplated, condemnation proceeding relating to the Property, and Seller has not received a any written notice from any governmental or quasi-governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a true and complete copy copies of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementProperty Contracts, and there have been no modifications and, to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent best of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not any and all other contracts, agreements, documents, reports, materials and information that are in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.12 There are no tenant improvement allowances, non-monetary tenant improvement obligations of Landlord, leasing commissions and/or rent concessions with respect to the current term of the Lease, except as disclosed on Schedule 4.1.12 attached hereto.
4.1.13 Seller has not received any written notice from, and 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 best of a violation of any other restrictions or covenants recorded against the Property.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a duly formed and validly existing limited liability company validly formed in partnership organized under the laws of the State of DelawareTexas. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein, which will not be reflected in the Preliminary Report. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Lease, and those matters reflected in the Preliminary Report, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Other than the consent of the government tenant under the Lease, to Seller’s knowledge, no the authorization, consent, or and approval of any a governmental authority (including courts) is not required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunderClosing herein described to occur.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither To the best of Seller’s knowledge, neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization organizational certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Lease, the Property Information Information, or as may be revealed disclosed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty to the best of Seller’s knowledge, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer Lease and Seller prior to other occupancy agreements affecting the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing DateProperty. Each of the Tenant Leases The Lease is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without with the consent of any party (other than consents required under tenant’s consent. Neither Seller nor the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant tenant is currently in default under its respective Tenant Lease and the Lease, nor does there exists no exist any condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default of either party under any of the Tenant LeasesLease. To Seller’s knowledgeExcept as set forth in the Threshold Estoppel, no Tenant has asserted the tenant is not asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant the Lease, and there are no unresolved disputes relating to the calculation of additional rent under the Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or improvements, unpaid tenant improvement costs or rent concessions costs, or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and no pecuniary obligation to tenant and brokers has vested or accrued and is owed by Seller’s knowledge, except as may that shall be provided fully completed and paid in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect full prior to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoingClosing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer and as acknowledged by Buyer and Seller in Section 4.1.29 hereof, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a duly formed and validly existing limited liability company validly formed in partnership organized under the State laws of DelawareTexas. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has or will cause to be conveyed to Buyer good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest thereintherein except for a right of first refusal in favor of Xxxxx Xxxxxxxx Company, LLC (“Xxxxxxxx LLC”) with respect to the Durham Parcel. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Leases, Seller or Property Owner has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, subject to the Leases, without material complaint or objection by any person.
4.1.3 Neither Seller nor to the best of Seller’s knowledge, Property Owner, is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor to be best of Seller’s knowledge, Property Owner, nor any of its Affiliatestheir affiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement, or, to the best of Seller’s knowledge, by Property Owner under the JDL Agreement or the performance of its their obligations hereunderhereunder or thereunder, except for the authorization, consent or approval of the tenant as may be required by the Leases.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property. To the best of Seller’s knowledge, there are no actions, suits or proceedings pending or threatened against Property Owner, which if determined adversely, would affect its ability to perform under the JDL Agreement.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s 's creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally. To the best of Seller’s knowledge, Property Owner has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by Seller’s creditors, (c) suffered the appointment of a receiver to take possession of all or substantially all of Seller’s assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s 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.
4.1.8 Neither To the best of Seller’s knowledge, neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument. To the best of Seller’s knowledge, neither the execution, delivery or performance of the JDL Agreement nor compliance therewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (i) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller or Property Owner, or (ii) any law or any order, writ, injunction or decree of any court or governmental authority, or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in Information. To the Preliminary Report.
4.1.9 To best of Seller’s knowledge, there Property Owner has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information.
4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty to the best of Seller’s knowledge, and Seller has not received a any written notice from any governmental agency or official to the effect that any such proceeding is threatened contemplated. To the best of Seller’s knowledge, Property Owner has not received any written notice from any governmental agency or official to the effect that any such condemnation proceeding is contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer complete copies of all Leases and other occupancy agreements affecting the Tenant LeasesProperty. The Rent Rolls are true, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer correct and Seller prior to complete in all material respects. All the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is are in full force and effect. Seller is “landlord” or “lessor” under covenants that Buyer will be a permitted assignee (subject to the Tenant Leases and is entitled to assign to Buyer, without tenant’s consent as required by the consent of any party (other than consents required under the Ground LeaseLeases), under each of the Tenant LeasesLeases at Closing. Except as provided on Schedule 4.1.10Neither Seller, neither Seller or Property Owner nor any Tenant is tenant shall be in default under its respective Tenant Lease the Leases and at Closing and there exists will exist no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under of either Seller, Property Owner or any of the Tenant Leasestenant. To Seller’s knowledge, no Tenant has asserted No tenant is asserting any claim of offset or other defense in respect of its or Sellerthe landlord’s obligations under its respective Tenant Leasethe Leases, and there are no unresolved disputes relating to the calculation of additional rent under the Leases. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any Tenant Lease. No Tenant the Leases and no pecuniary obligation to tenants and brokers has (i) vested or accrued and is owed by Seller or to the best of Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measureProperty Owner, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention that shall be fully completed and paid in full prior to do any of the foregoingClosing.
4.1.11 4.1.12 The statements of revenue and expenses for the Property operations for the periods ending December 31, 2007, December 31, 2008 and December 31, 2009 to be provided by Seller has delivered or made available to Buyer a and any year-to-date statements of revenue and expenses for the Property operations (collectively, the “Financial Statements”) are true, correct and complete copy of the Ground Leasein all material respects. The Parcel that is ground leased pursuant to a Ground Lease is accurately described Financial Statements present fairly, in all material respects, the information contained therein for the periods indicated therein in conformity with accounting principles generally accepted in the Recitals to this AgreementUnited States of America (not GAAP). Property Owner has agreed in the JDL Agreement that, and there have been no modifications subject to the Ground Lease other than inclusion of certain disclaimers and cautionary statements to investors as described in Section 4.2.4 of the Recitals to this JDL Agreement. The Ground Lease is , Buyer (or an affiliate thereof) may include the Financial Statements in full force registration statements, prospectuses, or similar documents in connection with syndications, private placements or public offerings of securities or interests by Buyer’s, or any of Buyer’s affiliates or assignees (collectively, “Offering Entity”) and effectany reporting requirements for such syndications, private placements or public offerings under applicable federal and state laws (collectively, the “Offering Documents”). Seller is “tenant” or “lessee” under will use commercially reasonable best efforts to persuade Property Owner to remove the Ground Lease foregoing requirement of those certain disclaimers and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements cautionary statements as set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.4.2.4
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a duly formed and validly existing limited liability company validly formed in organized under the State laws of DelawareColorado. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no The authorization, consent, or and approval of any a governmental authority (including courts) is required for the execution and delivery by Closing herein described to occur. However, Seller will use its reasonable best efforts to obtain such approval within fifteen (15) days of the Effective Date of this Agreement or the performance of its obligations hereunderAgreement.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither To the best of Seller’s knowledge, neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty to the best of Seller’s knowledge, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer Lease and Seller prior to other occupancy agreements affecting the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing DateProperty. Each of the Tenant Leases The Lease is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the tenant’s consent of any party (other than consents required under the Ground Leasesubject to Section 4.1.5, above), the Tenant LeasesLease at Closing. Except as provided on Schedule 4.1.10, neither Neither Seller or any Tenant is nor the tenant shall be in default under its respective Tenant the Lease and at Closing there exists will exist no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of either Seller or the Tenant Leasestenant. To Seller’s knowledge, no Tenant has asserted The tenant is not asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant the Lease, and there are no unresolved disputes relating to the calculation of additional rent under the Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any Tenant Leasethe Lease and no pecuniary obligation to tenant and brokers has vested or accrued and is owed by Seller, except that shall be fully completed and paid in full prior to Closing.
4.1.12 The financial statements of Property operations provided by Seller, including, but not limited to, statements of revenue and expenses, balance sheets and statements of cash flow are true, correct and complete in all material respects. No Tenant has (i) to Such financial statements present fairly, in all material respects, the information contained therein for the periods indicated therein. All expenses associated with Property operations have been recorded in Seller’s knowledgegeneral ledger. Seller agrees to provide such other reasonable information requested by Buyer provided such request may not delay the Closing.
4.1.13 Seller agrees to make such further and other reasonable representations and warranties regarding the financial statements of the Property and the Seller, filed including, but not limited to representations and warranties related to statements of revenue and expenses, and Seller’s internal controls for bankruptcy the prevention and detection of fraud, as may be reasonably required of Seller by Buyer’s auditor. Seller further agrees to reasonably cooperate with Buyer’s auditor in connection with delivery of any audit opinions or taken comfort letters relating to audited financial statements prepared by Buyer’s Auditor and consents to the dissemination of any similar debtor-protection measuresuch audited financial statements, (ii) except opinions or letters as provided on Schedule 4.1.10may be required by Buyer or its auditor for any purpose, defaulted under its Tenant Leaseincluding but not limited to their inclusion in any registration statements, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Propertyprospectuses, or (iv) except as provided on Schedule 4.1.10similar documents in connection with syndications, given notice private placements or public offerings of its intention to do securities or interest by Buyer, or any of Buyer’s affiliates or assigns and any reporting requirements for the foregoingsame under applicable federal and state laws. All costs and expenses associated with any reports, opinions or letters required by this section shall be borne by Buyer.
4.1.11 4.1.14 Seller has delivered or made available to Buyer true and complete copies of all management and leasing contracts to which Seller is a complete copy of party and affecting the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementProperty and, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent best of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not all other contracts, agreements, documents, reports, materials and information that are in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.13 4.1.15 There are no debts or other liabilities or obligations relating to the Lease or the Property, including but not limited to tenant improvement costs and leasing commissions, vesting, accruing and/or arising prior to Closing which will be due or payable from or by Buyer.
4.1.16 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge4.1.17 Except as disclosed in the Property Information, there are no material defects in the structural elements of the Improvements and all Improvements improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledgeand, there is no material leak or material defect in any roof located upon the Property.
4.1.15 4.1.18 Seller has not received any written notice from, and Seller is not otherwise aware of any no grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there 4.1.19 The Property is properly zoned for its current use. There is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, ; there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 4.1.20 Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there 4.1.21 Seller has received no notice that the Property or any portion thereof contains any form of toxic mold.
4.1.22 There are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon the Close of Escrow hereunder, in existence on the Close of Escrow. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 (1) Seller is a limited liability company validly formed in the State of DelawareOhio. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for (2) Seller has good and marketable title to the rights Property, subject only to the conditions of first refusal title set forth in favor of the Hospital, there Commitment. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. There are no unrecorded or undisclosed documents or other matters which affect title to the Property. Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 (3) Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither (4) To Seller’s knowledge, neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no (5) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 (6) There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (ia) any portion of the Property, or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 (7) Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 (8) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) to Seller’s knowledge, results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
(9) Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To (10) There is no pending, or to Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a no notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 (11) Seller has delivered or made available to Buyer a complete copies copy of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)party, the Tenant Leases. Except To Seller’s knowledge and except as provided on Schedule 4.1.10disclosed in writing by Seller to Buyer within ten (10) days after the Effective Date, neither Seller or nor any Tenant tenant is in default under its respective Tenant Lease at Closing 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 under any of the Tenant Leases. To Seller’s knowledgeknowledge and except as disclosed in writing by Seller to Buyer within ten (10) days after the Effective Date, no Tenant tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any Tenant Lease, except that shall be fully completed and paid in full prior to Closing. No Tenant To Seller’s knowledge and except as disclosed in writing by Seller to Buyer within ten (10) days after the Effective Date, no tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 (12) Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, true and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that 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 Contracts Property service contract or other such contract or agreement that has not been cured or waived.
4.1.13 (13) Seller has not received any written notice from, and 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.
4.1.14 (14) To Seller’s knowledge, except as disclosed in the Property Information, there are no material defects in the structural elements of the Improvements improvements and all Improvements improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, order and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 (15) Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, from any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 (16) To Seller’s knowledge, there the Property is properly zoned for its current use. There is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, ; there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 (17) To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 (18) Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 (19) To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon Closing hereunder, in existence on the Closing Date. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received no notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ Seller’s knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations. Except as set forth in Schedule 4.1, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a comprised of two duly formed and validly existing limited liability company validly formed in companies each of which is organized under the State laws of DelawareOklahoma. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has fee simple title to the rights of first refusal in favor of the Hospital, Property. To Seller’s knowledge (i) there are no outstanding rights of first refusal to purchase unrecorded or options to purchase relating undisclosed documents or other matters which affect title to the Property Property, and (ii) subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any interest thereinperson.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or (iia) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder; or (b) against any portion of the Property.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the respective articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) to Seller’s knowledge, results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, and to Seller’s knowledge there are no threatened or contemplated condemnation proceeding proceedings relating to the Property, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer complete copies of all Leases and other occupancy agreements affecting the Tenant LeasesProperty. The rent rolls provided to Buyer are the same used in the regular course of Seller’s business. To Seller’s knowledge, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to all the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is are in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without tenant’s consent, each of the consent of any party (other than consents required under the Ground Lease), the Tenant LeasesLeases at Closing. Except as provided on Schedule 4.1.10To Seller’s knowledge, neither Seller or nor any Tenant tenant is in default under its respective Tenant Lease the Leases, and to Seller’s knowledge, there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under of either Seller or any of the Tenant Leasestenant. To Seller’s knowledge, no Tenant has asserted tenant is asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Leasethe Leases, and there are no unresolved disputes relating to the calculation of additional rent under the Leases. Except as provided on Schedule 4.1.10To Seller’s knowledge, there are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to the Leases and no pecuniary obligation to tenants and brokers has vested or accrued and is owed by Seller, except that shall be fully completed and paid in full prior to Closing.
4.1.12 The financial statements of Property operations provided by Seller, including, but not limited to, statements of revenue and expenses, balance sheets and statements of cash flow and any Tenant Leaseyear-to-date statements of revenue and expenses for the Property operations (updated quarterly) are true, correct and complete in all material respects. No Tenant has (i) to Such financial statements have been prepared in accordance with sound accounting principles and present fairly, in all material respects, the information contained therein for the periods indicated therein. All expenses associated with Property operations have been recorded in Seller’s knowledgegeneral ledger. Seller agrees that Buyer (or an affiliate thereof) may include the financial statements in registration statements, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Propertyprospectuses, or similar documents in connection with syndications, private placements or public offerings of Buyer’s (ivor such affiliate’s) except as provided on Schedule 4.1.10securities or interests, given notice and any other reporting requirements under applicable federal and state laws, including those of its intention any successor to do any of Buyer. Seller agrees to provide such other reasonable information necessary with respect to the foregoingProperty to facilitate a private placement or a public offering or to satisfy the SEC or regulatory disclosure requirements to the extent such information is under Seller’s possession or control.
4.1.11 4.1.13 Seller agrees to reasonably cooperate with Buyer’s auditor in connection with its delivery of any audit opinions or comfort letters relating to audited financial statements and consents to the dissemination of any such audited financial statements, opinions or letters as may be required by Buyer or its auditor. All costs and expenses associated with any new reports or opinions required by this section shall be borne by Buyer.
4.1.14 Seller has delivered or made available to Buyer true and complete copies of all management and leasing contracts to which Seller is a complete copy of party and affecting the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementProperty and, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent best of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not all other contracts, agreements, documents, reports, materials and information that are in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.13 4.1.15 There are no outstanding debts or other liabilities or obligations of Seller relating to the Leases or the Property, including but not limited to tenant improvement costs, rent concessions and leasing commissions, vesting, accruing and/or arising prior to Closing which will be due or payable from or by Buyer.
4.1.16 Except as set forth on Schedule 4.1.16, Seller has not received any written notice from, and 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.
4.1.14 . To Seller’s knowledge, there are no defaults or unpaid assessments under any items of record that affect the Property.
4.1.17 To Seller’s knowledge and except as disclosed in the Property Information, (a) there are no material defects in the structural elements of the Improvements and all Improvements Improvements, (b)all improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, (c) there is no material leak or material defect in any roof located upon the Property.
4.1.15 4.1.18 Seller has not received any written notice from, and Seller is not otherwise aware of any no grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there 4.1.19 Seller has received no notice that the Property is not properly zoned for its current use. Seller has received no notice of any pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 4.1.20 Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 4.1.21 Seller has received no notice that the Property or any portion thereof contains any form of toxic mold.
4.1.22 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon the Close of Escrow hereunder, in existence on the Close of Escrow. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (US Federal Properties Trust Inc.), Real Estate Purchase Agreement (US Federal Properties Trust Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareMichigan, and qualified to do business in the State of Michigan. Seller has full power and authority to enter into this Agreement, to perform this Agreement Agreement, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller owns marketable fee simple title to the rights interests in real property described in Section 1.1.1 above, subject only to the conditions of first refusal title set forth in favor of the Hospital, there Preliminary Report. There are no outstanding rights of first refusal to purchase refusal, rights of reverter, or options to purchase relating to the Property or any interest therein. There are no unrecorded or undisclosed documents or other matters which affect title to the Property other than the Tenant Leases. Subject to the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of Delaware. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and and, to the best of Seller’s knowledge, will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or and/or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights of first refusal in favor of the Hospital, there Property. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To the best of Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, pending or, to the best of Seller’s knowledge, threatened threatened, against (ia) the Property or any portion of the Property, thereof; or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s 's creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s 's assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s 's assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportProperty.
4.1.9 To 4.1.10 There is no pending or, to the best of Seller’s knowledge, there is no pending, threatened or contemplated contemplated, condemnation proceeding relating to the Property, and Seller has not received a any written notice from any governmental or quasi-governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a true and complete copy copies of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementProperty Contracts, and there have been no modifications and, to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent best of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not any and all other contracts, agreements, documents, reports, materials and information that are in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition possession or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements control with respect to the Ground Lease. To Seller’s knowledgeownership, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either use and/or operation of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property Contract or other such contract or agreement that has not been cured or waived.
4.1.12 There are no tenant improvement allowances, non-monetary tenant improvement obligations of Landlord, leasing commissions and/or rent concessions with respect to the current term of the Leases, except as disclosed on Schedule 4.1.12 attached hereto.
4.1.13 Seller has not received any written notice from, and 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 best of a violation of any other restrictions or covenants recorded against the Property.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed and in good standing in the State of DelawareDelaware and qualified to do business in the State of Kansas. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller owns fee simple title to the rights of first refusal in favor of the HospitalReal Property. To Seller’s knowledge, there are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein, and there are no unrecorded or undisclosed documents or other matters which affect title to the Property other than the Tenant Leases. Subject to the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company company, validly formed in the State state of DelawareArizona. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andand subject to Lender’s consent to the Loan Assumption and the waiver by Wal-Mart Stores, except for approvals, waivers and consents required from the HospitalInc. of its right of first refusal granted under its Lease, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Seller has good and marketable title to the Property, subject to the conditions of title. Except for as set forth in the rights of first refusal in favor of the HospitalLeases, there are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (ia) any portion of the Property, or (iib) affecting Seller, which if determined adversely, may would affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or contemplated condemnation proceeding relating to the PropertyProperty other than that which may arise in connection with the City of Tucson improvements to Grant Road and the intersection of Grant Road and Alvernon Way, and Seller has not received a no written notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant The Leases is are in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)Tenant’s consent, the Tenant Leaseseach Lease at Closing. Except as disclosed in the Property Information (and any update thereof provided by Seller to Buyer prior to Closing), on Schedule 4.1.10Exhibit “B”, to Seller’s actual knowledge: (i) neither Seller or any Tenant is nor Tenants shall be in default under its respective Tenant any Lease and at Closing there exists will exist no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default of either Seller or Tenant under any of the Tenant Leases. To Seller’s knowledgeLease, except as such representation may be updated by notice or otherwise; (ii) except as may be set forth in any estoppel certificate delivered to Buyer, no Tenant has asserted is asserting any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant any Lease. Except as provided on Schedule 4.1.10, ; and (iii) there are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to the Leases and pecuniary obligation to any Tenant Lease. No Tenant and brokers has (i) to Seller’s knowledge, filed for bankruptcy vested or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 accrued and is owed by Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, shall be fully completed and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is paid in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled prior to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoingClosing.
4.1.12 Seller has delivered or made will make available to Buyer pursuant to Section 3.1 above at Buyer’s request true and complete copies of all Contracts used in management and leasing contracts to which Seller is a party and affecting the ordinary course Property and, to the best of Seller’s business actual knowledge, all other contracts, agreements, documents, reports, materials and information that affect are in Seller’s possession or control with respect to the ownership, use and/or operation of the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property service contract or other such contract or agreement that has not been cured or waived.
4.1.13 There are no debts or other liabilities or obligations relating to the Leases or the Property, including but not limited to tenant improvement costs and leasing commissions, vesting, accruing and/or arising prior to Closing which will be due or payable from or by Buyer except in connection with any renewals or expansions.
4.1.14 Seller has not received any written notice from, and 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.
4.1.14 4.1.15 To the best of Seller’s knowledgeactual knowledge without investigation or inquiry, except as disclosed in the Property Information, there are no material defects in the structural elements of the Improvements owned by Seller and all Improvements owned by Seller (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledgeand, there is no material leak or material defect in any roof located upon the Property.
4.1.15 4.1.16 Seller has not received any written notice from, and to Seller’s actual knowledge without investigation or inquiry, Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there 4.1.17 The Property is properly zoned for its current uses. There is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, Property except as may arise with respect to the Grant Road and Alvernon Way improvements to be undertaken in connection with the Regional Transportation Authority; there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 Except as may otherwise be disclosed in the Property Information, Seller has received no notice that the Property or any portion thereof contains any form of toxic mold.
4.1.20 To the actual knowledge of Seller’s knowledge, without investigation or inquiry, except as may be disclosed in the Property Information, and based solely thereon, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon the Close of Escrow hereunder, in existence on the Close of Escrow. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer Purchaser that as followsof the Effective Date:
4.1.1 Seller is a limited liability company validly formed in the State of Delaware. (A) Seller has full right, power and authority to enter into and perform its obligations under this Agreement, including, without limitation, the authority to perform convey good and marketable title to the Land to Purchaser, subject to the Permitted Exceptions (as defined below). The execution and delivery of this Agreement by Seller, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained authorized by Seller, and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This this Agreement is a legal, valid binding on Seller and binding obligation of Seller, enforceable against Seller in accordance with and subject to its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for (B) Seller has not actually received any written notice alleging that it is in default under the rights of first refusal in favor of Publix Lease, the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating to the Property Tenant Leases or any interest therein.
4.1.3 Seller is not a “foreign person” within other documents, recorded, unrecorded or referred to in the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, Permitted Exceptions and none of their respective partners, members, shareholders or other equity owners, and affecting title to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or under any of the Contracts (ii) affecting Selleras defined below), which if determined adversely, may affect its ability to perform its obligations hereunderany.
4.1.7 (C) Seller has not entered into any contracts of any kind relating to the management, leasing, operation, maintenance or repair of the Property that are currently in effect, except those listed on Exhibit "C," (the “Contracts”), the Leases and the Remediation Agreements hereafter described.
(D) 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 an any involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all all, or substantially all all, of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither (E) Seller is a "United States Person" within the executionmeaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, delivery as amended, and shall execute and deliver an "Entity Transferor" certification at Closing.
(F) To the best of Seller’s actual knowledge and belief, other than the right of first offer granted to Publix under the Publix Lease, the Property is not subject to any unrecorded right of first refusal or performance option to purchase by any third party and, except for the right of Purchaser to acquire the Property pursuant to this Agreement nor compliance herewith conflicts and the rights of Publix under the Publix Lease, no other person, firm or will conflict with entity has any right to acquire all or results any portion of the Property or will result in a breach of or constitutes or will constitute a default under any interest therein.
(aG) To the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement best of Seller's actual knowledge and belief, or the Leases are in full force and effect according to the terms set forth therein. The rent roll attached hereto as Exhibit "D" (bthe "Rent Roll") is certified by Seller as true and correct in all material respects to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority's actual knowledge and belief. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except Except as provided set forth in the Property Information Rent Roll or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened Publix Lease or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) or as otherwise disclosed to be mutually agreed upon by Buyer Purchaser in writing, the Leases have not been modified or amended. To the best of Seller's actual knowledge and Seller prior belief, with respect to the expiration of the Due Diligence Period Publix Lease and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases, all required tenant improvements have been completed, and all allowances, cash or other inducements, rent abatements have been paid. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is otherwise set forth in default under its respective Tenant the Publix 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 under any of the Tenant Leases. To , to the best of Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has actual knowledge and belief (i) to Seller’s knowledgethe tenants have asserted no written offsets, filed for bankruptcy defenses or taken any similar debtor-protection measure, claims against rent payable by them or other performance or obligations otherwise due from them under the leases; (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications concessions, of any nature, granted to any tenants that will remain applicable from and after the Ground Lease Closing; (iii) neither base rent, nor regularly payable estimated tenant contributions or operating expenses, insurance premiums, real estate taxes, common area charges, and similar or other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” "pass through" or “lessee” under the Ground Lease and is entitled to assign to Buyernon-base rent items including, without the consent of limitation, cost-of-living or so-called "C.P.I." or other such adjustments (collectively, "Additional Rent"), nor any other item payable by any tenant under any lease has been heretofore prepaid for more than one month; (iv) no tenant or any other party has asserted any written claim (other than for customary refund at the ground lessor expiration of such Parcel a lease) which remains pending to all or any part of any security; and (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. v) Seller is not in default under the Ground Lease. Publix Lease or any of the Tenant Leases.
(H) To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, best actual knowledge and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppelbelief, there are no pending brokers' commissions, finders' fees, or incomplete improvement requirements similar charges payable or to become payable to any third party on behalf of Seller as a result of or in connection with respect any Lease term currently in effect, including exercised options to the Ground Lease. renew.
(I) To Seller’s knowledge's best actual knowledge and belief, except as disclosed in those certain environmental reports referenced in Exhibit “E” attached hereto (said reports together with all information on record with the Ground Lessor has not State of Florida Environmental Protection (“FDEP”) concerning former Conoco Store No. 090021, FEDP Facility No. 00-0000000 being herein referred to as the “Environmental Reports”) (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined belowin Section 22 of this Agreement) stored onat or on the Property, incorporated intoexcept in compliance with applicable Environmental Laws (as defined in Section 22 of this Agreement), and (ii) there is no pending or threatened litigation or proceeding before any administrative agency in which any person or entity alleges the violation or threatened violation of any Environmental Laws at the Property.
(J) To Seller’s best actual knowledge and belief, at Closing there will be no storage tanks located onon the Property, present in either above or used below ground, nor any underground pipes or lines (other than those pipes and lines associated with the ground water remediation system (the “Remediation System”) which has been installed by Conoco Xxxxxxxx Company on the Property in violation ofand except for lines for electrical, and requiring remediation undertelephone, any lawscable, ordinancesgas, statutessewer, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 water or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision in which utilities serving 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 into the environment Shopping Center and/or public utility companies).
(including, without limitation, ambient air, surface water, ground water or land or soil). K) Seller has not received any written threat or notice that the Property of any actions, suits, or proceedings alleging any violation of any governmental approvals or any portion thereof contains violation of building codes and/or zoning ordinances or any form of toxic mold. No treatment has been undertaken by Seller other applicable laws, statutes, ordinances or other governmental regulations with respect to termite or similar infestationthe Property, fungiincluding (without limitation) the Americans With Disabilities Act ("ADA"), that have not previously been fully cured and resolved. Furthermore, Seller has no actual knowledge of any third party threatening an ADA suit. If after the Effective Date and prior to Closing Seller shall receive written notice of any such violation ("New Violation"), Seller shall notify Purchaser of such New Violation. If Seller shall fail to cure such New Violation, Purchaser shall have the option either (i) to terminate this Agreement by written notice to Seller and Escrow Agent, whereupon this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Purchaser by Escrow Agent (except for the Option Fee, which shall be paid to Seller at such time as consideration for the rights afforded Purchaser under this Agreement), and both parties shall be released of all further obligations hereunder except those specifically provided to survive termination, or dry rot on (ii) to accept title to the Property other than normal periodic servicesubject to any such New Violations and close without any adjustment of the Purchase Price.
(L) All required sales tax filings previously due for the Property have heretofore been filed, and to all associated sales taxes previously due in respect thereof have been paid. All representations and warranties made in this Agreement shall survive the best Closing for a period of Sellers’ knowledge, there is no damage to any portion of one (1) year following the Property from termite or similar infestation, fungi or dry rotClosing (the "Survival Period").
Appears in 1 contract
Samples: Sale and Purchase Agreement (Inland Diversified Real Estate Trust, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed and in good standing in the State of DelawareGeorgia. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvalsor will be, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller owns fee simple title to the rights of first refusal interests in favor of the Hospital, there real property described in Section 1.1.1 above. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. There are no unrecorded or undisclosed documents or other matters which affect title to the Property except as otherwise disclosed in writing by Seller to Buyer. Subject to the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s actual knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Representations. Seller warrants and hereby represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in that the State of Delaware. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there following matters are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, and none of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment andexecution of this Agreement, are material and are being relied upon by Buyer and shall, except as otherwise provided hereindisclosed in writing by Seller to Buyer, be true and correct as of the Closing Date. Each Closing:
26.1 Seller is a limited partnership, duly formed, validly existing and in good standing under the laws of the Tenant Leases State of Delaware.
26.2 This Agreement and all documents executed by Seller that are to be delivered to Buyer at Closing (i) are, or at the time of Closing will be, duly authorized, executed and delivered by Seller, (ii) do not, and at the time of Closing will not, violate any provision of any judicial order to which Seller is a party or to which Seller or the Property is subject and (iii) constitute (or in full force the case of closing documents will constitute) a valid and effectlegally binding obligation of Seller. Seller is “landlord” has full and complete power and authority to enter into this Agreement and, subject to obtaining any consents or “lessor” under the Tenant Leases and is entitled waivers required to assign be obtained prior to BuyerClosing, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. to perform its obligations hereunder.
26.3 Except as provided on Schedule 4.1.10set forth in the materials delivered to Buyer or made available to Buyer pursuant to Section 4 above, neither or as otherwise disclosed in writing by Seller or any Tenant is in default under its respective Tenant Lease and there exists no condition or circumstance or written notice of any condition or circumstance whichto Buyer prior to Closing, with the passage of time, would constitute a default under any of the Tenant Leases. To to Seller’s 's actual knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, (i) there are no pending or incomplete tenant improvements threatened legal proceedings, including, without limitation, condemnation proceedings, or unpaid tenant improvement costs administrative actions of any kind or rent concessions character materially and adversely affecting the Property or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge's interest therein, filed for bankruptcy or taken any similar debtor-protection measure, and (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at Seller has not received written notice of any special assessment proceedings affecting the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has 26.4 Except as set forth in the materials delivered to Buyer or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described Section 4 above, or as otherwise disclosed in the Recitals writing by Seller to this AgreementBuyer prior to Closing, and there have been Seller has received no modifications to the Ground Lease written notice from any city, county, state or other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” government authority of any violation of any statute, ordinance, regulation, or “lessee” under the Ground Lease and is entitled to assign to Buyeradministrative or judicial order or holding, including, without the consent of limitation, any party (other than the ground lessor of such Parcel (the “Ground Lessor”)laws regarding environmental matters, the Ground Lease. To Seller’s knowledgeincluding, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledgewithout limitation, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements laws with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy a release of Hazardous Materials on or taken any similar debtor protection measure, (ii) defaulted under the Ground LeaseProperty, whether or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used not appearing in the ordinary course of Seller’s business that affect the Property. Seller has notpublic records, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and is otherwise aware of no grounds for, any association, declarant or easement holder requiring the correction of any condition with respect to the Property, which violation has not been corrected.
26.5 Except as set forth in the materials delivered to Buyer or made available to Buyer pursuant to Section 4 above, or as otherwise disclosed in writing by Seller to Buyer prior to Closing, Seller has received no written notice from any part thereofcity, by reason of a violation county, state or other government authority (i) of any other restrictions order or covenants recorded against directive requiring any work of repair, maintenance or improvement be performed on the Property, or (ii) relating to defects in the Improvements or relating to noncompliance with any applicable building code or restriction, including, without limitation, the Americans with Disabilities Act of 1990 ("ADA"), Title 24 of the California Administrative Code and other federal, state and local laws (including laws or codes regulating fire, safety, handicapped access or seismic design), that has not been corrected, or relating to any threat of impending condemnation.
4.1.14 To 26.6 Except as set forth in the materials delivered to Buyer or made available to Buyer pursuant to Section 4 above, or as set forth in the tenant estoppel certificates delivered to Buyer pursuant to Section 4.2.1.1 above, or as otherwise specifically disclosed in writing to Buyer prior to Closing, (i) the Leases are in full force and effect and have not been modified in any material manner, and (ii) to Seller’s 's actual knowledge, there are no material defects current defaults in the structural elements performance of the Improvements and all Improvements obligations of any party under the Leases. Additionally, (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipmenta) located on there are no outstanding assignments by Seller of Seller's interest in the Property are to Seller’s knowledge, in good mechanical working order, condition and repairLeases, and (b) there are structurally safe and sound and have no material defect (reasonable wear and tear excepted)other leases, and to Seller’s knowledgeservice contracts, there is no leak maintenance agreements or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition other agreements with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and those delivered to or made available to Buyer pursuant to the best provisions hereof.
26.7 The materials delivered to Buyer or made available to Buyer pursuant to Section 4 above contain true, correct and complete copies of Sellers’ all Leases, all material Contracts and all material environmental and structural reports to the extent in the actual possession of Seller and, to Seller's actual knowledge, there is no damage said materials delivered to any portion or otherwise made available to Buyer under this Agreement by Seller contain complete copies of the Property from termite documents in Seller's possession. Notwithstanding anything contained herein to the contrary, Seller is only delivering and making available said materials to the extent currently in Seller's possession and Seller shall not be required to prepare or similar infestationobtain any information, fungi document, report or dry rotsurvey. Seller is not making any express or implied representation as to the accuracy or thoroughness of the contents of any of said materials or of the ability of Buyer to rely on any of said materials. This representation shall not be deemed breached by virtue of any new leases or new agreements entered into after the Agreement Date in accordance with the provisions of Section 7 hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mercury Interactive Corporation)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareMinnesota. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller has good and marketable title to the rights Property, subject only to the conditions of first refusal title set forth in favor of the Hospital, there Preliminary Report and the items listed in Section 2.2 hereunder. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, and to Seller’s knowledge, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There To Seller’s knowledge, there are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (ia) any portion of the Property, or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or and as may be revealed provided in the Preliminary Reportitems listed in the Required Title Condition.
4.1.9 4.1.10 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a no notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)party, the Tenant Leases. Except as provided on Schedule 4.1.10To Seller’s knowledge, neither Seller or nor any Tenant tenant is in default under its respective Tenant Lease at Closing 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10To Seller’s knowledge, there are no pending or incomplete tenant improvements or and unpaid tenant improvement costs or rent concessions or and leasing commissions with respect to any Tenant Lease, except that shall be fully completed and paid in full prior to Closing. No Tenant To Seller’s knowledge, no tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. 4.1.12 To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made will make available to Buyer true and complete copies of all Contracts used in the ordinary course of Seller’s business that contracts to which Seller is a party and which materially affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts Property service contract or other such contract or agreement that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any to Seller’s knowledge there are no grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 4.1.15 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, ; there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 4.1.16 Seller has not received any written notice from any governmental authority of its an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 4.1.17 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulationsregulations as of the date of this Agreement or, upon the Close of Escrow hereunder, in existence on the Close of Escrow. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received no notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ Seller’s knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot. Notwithstanding anything herein to the contrary, Seller acknowledges that Hazardous Materials are utilized by certain tenants on the Real Property. Seller represents that, to Seller’s knowledge, such use is in the ordinary course such tenants’ business and in accordance with all applicable legal standards.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company partnership validly formed in the State Commonwealth of DelawarePennsylvania. Seller has full power and authority to enter into this Agreement, to perform this Agreement Agreement, and to consummate the transactions contemplated hereby. The execution, execution and delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating Seller owns fee simple title to the Property or any interest thereininterests in real property described in Section 1.1.1 above.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, is a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally knowingly engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There To the best of Seller’s knowledge, there are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareCalifornia, and qualified to do business in the State where the Real Property is located. Seller has full power and authority to enter into this Agreement, to perform this Agreement Agreement, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller owns fee simple title to the rights interests in real property described in Section 1.1.1 above, subject only to the conditions of first refusal title set forth in favor of the Hospital, there Preliminary Report. There are no outstanding rights of first refusal to purchase refusal, rights of reverter, or options to purchase relating to the Property or any interest therein. To the best of Seller’s knowledge, there are no unrecorded or undisclosed documents which affect title to the Property. Seller has owned the Property subject to the Tenant Lease, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There To the best of Seller’s knowledge, there are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT IV, Inc.)
Seller’s Representations. Seller represents and warrants and represents to Buyer as followsof the Effective Date (and, as of the Closing Date) that:
4.1.1 Seller is a limited liability company validly formed in the State of Delaware. Seller Alabama, and has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. .
4.1.2 Seller has not granted any outstanding rights of first refusal, rights of reverter or options to purchase relating to the Property or any interest therein (other than in favor of Ground Lessor pursuant to the Ground Lease).
4.1.3 This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein.
4.1.3 4.1.4 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 4.1.5 Neither Seller nor any of its AffiliatesSeller, and none of their respective partnersnor, members, shareholders or other equity owners, and to Seller’s knowledgeKnowledge, none any person or entity that controls the management and policies of their respective employeesSeller or owns directly or indirectly more than fifty percent (50%) of Seller, officersand, directorsto Seller’s Knowledge, representatives no employee, officer, or agents is, nor will they become, director of Seller is a person or entity with whom United States persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury Treasury) (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including, without limitation, 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 and, to Seller’s Knowledge, is not and will not intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no 4.1.6 No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 4.1.7 There are no actions, suits or proceedings pending, pending or, to Seller’s knowledgeKnowledge, threatened against (i) the Property or any portion thereof (excluding any actions, suits or proceedings against the Property that may result from the acts or omissions of any Tenant or Subtenant, with respect to which Seller represents and warrants to Buyer that Seller has not received any written notice of the Propertysame), or (ii) affecting Seller, which which, in either case, if determined adversely, may adversely would be likely to adversely affect its Seller’s ability to perform its obligations hereunder.
4.1.7 4.1.8 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 4.1.9 Neither the execution, delivery or performance of this Agreement nor compliance herewith (i) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into , or (ii) results in the creation or imposition of any material commitments lien, charge or agreements with encumbrance upon its property pursuant to any governmental authorities affecting such agreement or instrument, or (iii) violates any restriction, requirement, covenant or condition set forth in any recorded agreement to which all or any part of the Property except as provided in is subject (excluding the mortgage encumbering the Property Information or as may of the Effective Date which mortgage will be revealed paid off in full and satisfied as of the Preliminary ReportClosing Date).
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and 4.1.10 Seller has not received a any written notice from any governmental agency or official to the effect that any such condemnation, eminent domain, assessment or similar proceeding or charge is threatened or contemplated, and, to Seller’s Knowledge, there is no such threatened or contemplated proceeding or charge relating to the Property. Seller has not received any written notice of a proposed increase in the assessed valuation of the Property.
4.1.10 4.1.11 A list of all Tenant Leases and Subleases is set forth on Schedule 4.1.11 annexed hereto and Seller has delivered or made available to Buyer pursuant to Section 3.3 a true, complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each accurate copy of the Tenant Leases and Subleases, and there have been no modifications to such Tenant Leases or Subleases other than as set forth on Schedule 4.1.11. To Seller’s Knowledge, each of the Tenant Leases and Subleases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10To Seller’s Knowledge, neither Seller or nor any Tenant under such Tenant Leases is in material default under its respective Tenant Lease and there exists no condition or circumstance or Lease, except as set forth on Schedule 4.1.11(a). Seller has not received any written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense from any Tenant in respect of its such Tenant’s or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there There are no pending or incomplete tenant improvements of landlord or unpaid tenant improvement costs or rent concessions by landlord or leasing commissions payable by landlord with respect to any such Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do .
4.1.12 Seller is not affiliated with any of the foregoingTenants.
4.1.11 4.1.13 A list of all Contracts is set forth on Schedule 4.1.13 annexed hereto and Seller has delivered or made available to Buyer a pursuant to Section 3.3 true, complete copy and accurate copies of all Contracts that are in effect as of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this AgreementEffective Date (and, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyerof Closing, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”all Assumed Contracts, if any), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledgeKnowledge, there exists are no condition payment defaults or circumstance which, with the passage of time, would constitute a default any other material defaults by Seller or by any other party to any Contract that has not been cured. .
4.1.14 Other than the Contracts, there are no other documents, agreements or understandings (whether oral or written) which might bind the Property or any portion thereof or the Buyer after Closing which might give rise to a claim for leasing commissions (other than as otherwise expressly provided to the contrary herein); and Seller has (or will have) paid by the Closing Date all leasing commissions which are due and payable by the Closing Date under the Contracts (other than as otherwise expressly provided to the contrary herein).
4.1.15 Seller has not received any written notice from any governmental authority of any Violations that, as of the Effective Date, remain uncured or undischarged except as set forth in Schedule 4.1.15 annexed hereto.
4.1.16 No person (other than Buyer or the Ground Lessor under the Ground Lease. Seller ) has complied with the construction requirements set forth in the Ground Leaseany right, and to Seller’s knowledgeagreement, except as may be provided in the Ground Lease Estoppelcommitment, there are no pending option, repurchase right, right of first offer or incomplete improvement requirements right of first refusal with respect to the Ground Lease. To Seller’s knowledgepurchase, the Ground Lessor has not (i) filed for bankruptcy assignment or taken transfer of all or any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either portion of the foregoingProperty (none of which may have been waived as of the Effective Date, and the waiver of which, in some instances, is subject to the terms of this Agreement).
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 4.1.17 Seller has not received any written notice from, and is otherwise aware of and, to Seller’s Knowledge, there are 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.
4.1.14 . To Seller’s knowledgeKnowledge, there are no material defects neither Seller nor any other party subject to any such document is in the structural elements of the Improvements default under any such document. Seller has timely paid all amounts due and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Propertypayable under each such document.
4.1.15 4.1.18 Seller has not received any written notice from, and Seller is not otherwise aware from any Applicable Legal Bodies of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 4.1.19 Seller has not received any written notice from any governmental authority of its Applicable Legal Bodies regarding an intention to revoke any certificate of occupancy, license, or permit issued in connection with all or any portion of the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in 4.1.20 Seller has not received any written notice from any Applicable Legal Bodies of any violation of, and requiring remediation under, of any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.related to
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareFlorida, and qualified to do business in the State of Georgia. Seller has full power and authority to enter into this Agreement, to perform this Agreement Agreement, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Seller owns fee simple title to the interests in real property described in Section 1.1.1 above, subject (to Seller’s knowledge) only to the conditions of title set forth in the Preliminary Report. Except for the rights of first refusal in favor as disclosed as part of the Hospital, Property Information: (i) there are no outstanding rights of first refusal to purchase refusal, rights of reverter, or options to purchase relating to the Property or any interest therein; and (ii) there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without any claim against Seller’s right of possession, use and operation by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other RP / DP Initials governmental action, and is not and will not intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Representations. Seller warrants and hereby represents to Buyer as followsthat:
4.1.1 (a) Seller is a duly and validly existing limited liability company validly formed in the State of Delaware. Seller partnership, and has full all necessary power and authority to enter into this Agreement, to perform this Agreement and to consummate sell, assign, transfer and deliver to Buyer the Shares and the shares subject to the option described in Section 5 (the "Optioned Shares");
(b) The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations hereunder and a consummation by Seller of the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action Seller and the general partner of Seller and no other approval or authorization on the part of such Seller andand no other person or entity is necessary for the execution and delivery of this Agreement by Seller, except for approvalsthe performance of its obligations hereunder and the consummation of the transactions contemplated hereby.
(c) No filing or registration with, waivers no notice to and consents required from the Hospitalno permit, all required consents and approvals have been duly obtained and will not result in a breach authorization, consent or approval of any public or governmental body or authority, or any third party, is necessary for the consummation by Seller of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. transactions contemplated by this Agreement.
(d) This Agreement is a legal, valid and binding obligation agreement of Seller, enforceable against Seller in accordance with its terms, subject to the effect terms except as enforcement may be limited by general principles of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium equity whether applied in a court of law or other similar laws affecting the rights a court of creditors generallyequity.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f(e) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, and none of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery of this Agreement by Seller nor the performance by Seller of this Agreement its obligations hereunder or the performance consummation of the transactions contemplated hereby will constitute a violation of, conflict with, or result in a default (or give rise to any right of termination, cancellation or acceleration) under, any note, bond, mortgage, indenture, license, contract, commitment, agreement, understanding, arrangement or restriction of any kind to which Seller is a party or by which Seller or its properties or assets is bound, or any judgment, decree, order, injunction, statute, rule or regulation applicable to Seller or any of its obligations hereunderassets or properties.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (if) any portion Seller is the record and beneficial owner of the PropertyShares and the Optioned Shares, or (ii) affecting Sellerfree and clear of all liens, which if determined adverselyclaims, may affect its ability to perform its obligations hereunderencumbrances and security interests of any kind.
4.1.7 Seller has not (ig) made a general assignment The delivery of the certificates for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered Shares and the filing of an involuntary petition by any of Seller’s creditors, (iii) suffered Optioned Shares to Buyer pursuant to the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance provisions of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach transfer to Buyer good and valid title to the Shares and the Optioned Shares, free and clear of or constitutes or will constitute a default under (a) the articles of incorporation all liens, claims, encumbrances and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree security interests of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Reportkind other than those created by Buyer.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 (h) Seller has delivered or made available to Buyer complete true and correct copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct Indenture dated as of December 24, 1992 between the date Company and Chemical Trust Company of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements California with respect to the Ground Lease. To Seller’s knowledgeCompany's 73/4% Convertible Subordinated Debentures due 2002, and the Ground Lessor has not Loan and Security Agreement between L.A. Gear California, Inc. and Congress Financial Corporation (Western) (the "Loan Agreement").
(i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either The Series B Stock represents all of the foregoingoutstanding preferred stock of the Company.
4.1.12 Seller has delivered or made available (j) The shares of the Company's Preferred Stock and Common Stock referred to Buyer complete copies of all Contracts used in the ordinary course first Whereas of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there this Agreement are no material defects in the structural elements all of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization shares of the current use and operation of the PropertyCompany's stock that are owned by either Seller or its general partner.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Stock Purchase Agreement (Trefoil Capital Investors Lp)
Seller’s Representations. Seller Sellers represents and warrants and represents to Buyer Purchaser as of the Effective Date, as follows:
4.1.1 5.1.1 Each Seller has the full right and authority to enter into this Agreement and to consummate or cause to be consummated the transaction contemplated by this Agreement, without the necessity for further consent from any third party. Each Seller owns their respective Interest and each Seller has the full right and authority to transfer all of the Interests owned by such Seller. The Interests consist of and account for all ownership, membership, equity and other interests of any kind in the Company, including but not limited ot any options to purchase, warrants, equity conversion rights or the like. The person signing this Agreement on behalf of each Seller is authorized to do so and this Agreement constitutes the valid and binding agreement of such Seller, and is enforceable in accordance with its terms. The execution and delivery of this Agreement, and the performance by such Seller of its obligations hereunder, do not violate any provision of such Sellers’, or the Company’s articles of organization, the LLC Agreement or the articles of organization or the operating agreement or the trust indenture of any Seller or any agreement or judicial order to which such Seller is subject.
5.1.2 Each Seller is duly organized, validly existing and in good standing under the laws of the state of its creation as a Delaware limited liability company validly formed company, and is qualified or registered to do business and is in good standing in the State of Delaware. Seller has state in which the Property is located, with full power and authority to enter into and execute this Agreement, to perform this Agreement Contract and to consummate the transactions contemplated hereby. The execution, delivery and performance Each Seller has received all requisite organizational approvals necessary for the execution of this Agreement Contract and all documents the consummation of the transactions contemplated hereby and this Contract constitutes the legal, valid and biding obligation of each Seller, enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by Seller bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting debtors' and creditors' rights generally and general equitable provisions.
5.1.3 The Company is duly organized, validly existing and in good standing under the laws of the state of its creation as a Delaware limited liability company, and is qualified or registered to do business and is in good standing in the state in which the Property is located. The Company has full limited liability company power and authority to own, operate and lease the Property and to carry on its business as it has been duly and validly authorized is currently conducted. Other than the Property, the Company does not own any other property or assets of any kind or nature and does not now conduct and has never conducted any other business other than in connection with the ownership and operation of the Property.
5.1.4 To Sellers’ knowledge, the Company has not engaged in or permitted any operations or activities upon, or any use or occupancy of the Property for the purpose of or in any way involving the handling, manufacture, treatment, storage, use, generation, release, discharge, refining, dumping, or disposal of any Hazardous Materials in violation of Applicable Laws. Except as disclosed on Schedule 5.1.4, the Company has not received any written notice from any governmental or regulatory authority of the presence or release of any Hazardous Materials in violation of any applicable Environmental Laws which remains uncured.
5.1.5 Except as set forth on Schedule 5.1.5, there are no actions, suits, proceedings, arbitrations, governmental investigations, administrative or other adjudicatory proceedings or other legal actions pending or, to Sellers’ knowledge threatened in writing, in any court or before or by any Governmental Authority against or affecting the Company or the Property.
5.1.6 There are no pending eminent domain or condemnation proceedings against the Property or any material part thereof and to Sellers’ knowledge, no such proceedings are presently threatened in writing or contemplated by any authority with the power of eminent domain.
5.1.7 No Seller is a foreign person subject to withholding tax as required by Section 1445 of the Internal Revenue Code.
5.1.8 All individuals are employed at the Property including the Hotel Employees are all necessary action employees of the Company. To Sellers’ knowledge, there are no agreements relating to any labor or collective bargaining agreement affecting the Property and there are no pension plans of any type with respect to Hotel Employees that would be binding on Purchaser or the part Company after Closing. The Company has not received any written notice from any labor union or group of employees that such union or group represents or believes or claims it represents or intends to represent any of the Hotel Employees nor has the Company received any written notice of any claim of unfair labor practices. To Sellers’ knowledge, Manager is not a party to any written employment agreements with respect to the Property that would be binding on Purchaser or the Company after Closing.
5.1.9 The execution and delivery of this Contract by each Seller and the consummation by such Seller and, except for approvals, waivers and consents required from of the Hospital, all required consents and approvals have been duly obtained and transactions contemplated hereby will not (i) violate any judgment, order, injunction, decree, regulation or ruling of any court or governmental entity or (ii) conflict with, result in a breach of any of the terms or provisions of, or constitute a default under the organizational documents of such Seller, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease or other material agreement or instrument to which such Seller is a party. This Agreement party or by which such Seller may be bound.
5.1.10 No consent, waiver, approval or authorization is required from any person or entity (that would materially adversely affect each Seller’s ability to consummate the transactions contemplated hereby or has not already been obtained) in connection with the execution and delivery of this Contract by such Seller or the performance by such Seller of the transactions contemplated hereby.
5.1.11 None of the Sellers or the Company has (i) commenced a legalvoluntary case, valid and binding obligation of Selleror had entered against it a petition, enforceable against Seller in accordance with its termsfor relief under any federal bankruptcy act or any similar petition, subject order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, (ii) caused, suffered or consented to the effect appointment of applicable bankruptcya receiver, insolvencytrustee, reorganizationadministrator, arrangementconservator, moratorium liquidator or other similar laws affecting official in any federal, state or foreign judicial or non-judicial proceedings, to hold, administer and/or liquidate all or substantially all of its property, or (iii) made an assignment for the rights benefit of creditors generallycreditors.
4.1.2 5.1.12 All Leases are listed in Schedule 5.1.12. Except for as set forth on Schedule 5.1.12, there are no leases, licenses or occupancy agreements in effect with respect to the rights of first refusal in favor of the HospitalProperty, or any portion thereof. To Sellers’ knowledge, there are no outstanding rights obligations for commissions, tenant improvements or other tenant concessions with respect to the Property.
5.1.13 All Property Contracts are listed in Schedule 5.1.13. All Property Contracts are in full force and effect, and there are no defaults or events that with notice or the passage of first refusal time or both, would constitute a default by the Company under any such Property Contract, nor, to purchase Sellers’ knowledge, by any other party thereto.
5.1.14 Sellers have delivered or options made available to purchase relating Purchaser copies of all licenses (including, without limitation, liquor licenses), certificates of occupancy, permits and approvals required to be issued by any Governmental Authority or any third party and used in or necessary to the ownership, operation, leasing, maintenance or use of the Property or any interest thereinpart thereof, including the use of the Hotel as a fully functioning full service hotel (the “Permits”). Except as set forth on Schedule 5.1.14, the Company has not received a notice from any applicable Governmental Authority (i) of any violation, default, intended or threatened non-renewal, suspension or revocation of any of the Permits or (ii) that the Hotel lacks any permits or licenses necessary for the present use and occupancy of the Hotel.
4.1.3 5.1.15 No Seller is not or is acting on behalf of an employee benefit plan (a “foreign person” within Plan”) subject to the meaning Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 1445(f) 4975 of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, ) and none of their respective partnersits assets constitutes or will constitute (or are or will be deemed, membersfor purposes of ERISA or Section 4975 of the Code, shareholders or, if applicable, any substantially similar federal, state, local or other equity ownersforeign law, to constitute) assets of any such Plan.
5.1.16 No Seller nor to Sellers’ knowledge any beneficial owner of any Seller: (i) is listed on the Specially Designated Nationals and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted from doing business under regulations of Blocked Persons List maintained by the Office of Foreign Asset Control Assets Control, Department of the Treasury (“OFAC”) pursuant to Executive Order No. 133224 66 Fed. Reg. 49079 (September 25, 2001) (the “Order”) and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the Department rules and regulations of OFAC or pursuant to any other applicable orders (such lists are collectively referred to as the Treasury “Lists”); (including those named on OFAC’s Specially Designated and Blocked Persons Listii) is a person or under any statute, executive order entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten iii) to CommitSellers’ knowledge is owned or controlled by, or Support Terrorism)acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Order, or other governmental action, and (iv) is not and will not intentionally engage or has engaged in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no authorization, consenttransactions, or approval is otherwise associated, with any Forbidden Entity. A “Forbidden Entity” is defined as (A) the governments of Cuba, Iran, North Korea, Myanmar, Syria and Sudan (each, a “Prohibited Country”) and any governmental authority of their agencies, including, but not limited to, political units and subdivisions (including courtseach, a “Prohibited Government”); and (B) any company that (1) is required for the execution and delivery wholly or partially managed or controlled by Seller a Prohibited Government, (2) is established, organized under, or whose principal place of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) business is in any portion of the PropertyProhibited Country, or (ii3) has failed to submit an affidavit following request therefore averring that it does not own or control any property or asset in and has not and does not transact business with any Prohibited Country. For purposes of this Section 5.1.15, a “company” is any entity whether publicly traded or privately owned capable of affecting Sellercommerce, which if determined adverselyincluding, may affect its ability but not limited to, a government, governmental agency, natural person, legal person, sole proprietorship, partnership, firm corporation, subsidiary, affiliate, franchisor, franchisee, joint venture, trade association, financial institution, utility, public franchise, provider of financial services, trust, or enterprise and any association thereof. The foregoing does not apply to perform its obligations hereunderany person or entity to the extent that such person’s interest in a Seller is through a US publicly traded entity.
4.1.7 Seller 5.1.17 Subject to the Property Contracts, the Company has not (i) made a general assignment for good and valid title to all of the benefit of creditorstangible personal property, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditorsand, (iii) suffered the appointment of a receiver to take possession other than Property Contracts, shall be free and clear of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation liens and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, encumbrances as of the Closing Date. Each of .
5.1.18 There are no existing management contracts or franchise agreements relating to the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (Property other than consents required under (i) the Ground Lease), Management Agreement and (ii) the Tenant LeasesFranchise Agreement. Except as provided on Schedule 4.1.10, neither Seller There are no defaults or any Tenant is in default under its respective Tenant Lease and there exists no condition events that with notice or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset time or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of timeboth, would constitute a default by Seller or Ground Lessor the Company under the Ground Lease. Seller has complied with Management Agreement or the construction requirements set forth in the Ground LeaseFranchise Agreement, and nor, to Seller’s Sellers’ knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken by any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoingother party thereto.
4.1.12 Seller has delivered or made available 5.1.19 Sellers have furnished to Buyer complete Purchaser copies of all Contracts used financial statements for the Property prepared by the Manager for the periods ending December 31, 2015-2018 and for the calendar months of 2019 and of the current year through the month preceding the date hereof, and all books and records of the Property, or true and complete copies thereof, maintained during Sellers’ ownership of the Company in the ordinary course of Seller’s business business.
5.1.20 Other than pursuant to the Franchise Agreement, the Company has not granted any options, rights of first refusal, rights of first offer or any other rights in favor of third parties with respect to the Property or any interest therein nor do any other unexpired rights exist in favor of third persons to purchase or otherwise acquire the Property or any interest therein.
5.1.21 (i) All tax returns of the Company have been properly and timely filed, (ii) all such tax returns were true, complete, and correct in all material respects, and (iii) the Company or Manager have paid all taxes that affect are due and payable in accordance with Applicable Laws in connection with the Hotel and its operation, including, without limitation, employer withholding taxes, sales and use taxes, occupancy taxes, real property taxes and personal property taxes. There are no tax claims, audits or proceedings pending or threatened against the Company, the Company has not received notice of and has no knowledge of any special tax assessment relating to the Hotel, the Property or any portion thereof, and there are no tax agreements in place affecting the Hotel or the Property. Seller The Property is not subject to any protest or appeal proceedings related to real property tax assessments or subject to “rollback” or similar reassessment for prior years. The Company has notbeen treated as a partnership for federal, within the last yearstate, and local income tax purposes since its formation.
5.1.22 The Company has not received any written notice of any default under violation of any Contracts applicable laws, rules and regulations related to the Property that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and is otherwise aware of no grounds for, any association, declarant or easement holder requiring the correction of any condition with respect prior to the Property, or any part thereof, by reason of a violation of any other restrictions or covenants recorded against the Property.Effective Date
4.1.14 5.1.23 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage Security Breach or attempted Security Breach has occurred at the Hotel. To Sellers’ knowledge, the Company and Manager have collected, used, imported, exported, stored, processed, and protected all Personal Information and other information protected by Data Rules, in accordance with the privacy policies of Seller, Manager, Franchisor, and in accordance with Data Rules applicable to any portion of Seller.
5.1.24 There are no ongoing capital improvement projects at the Property from termite that have commenced on or similar infestation, fungi or dry rotbefore the date hereof that will not be completed and paid for in full prior to Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Procaccianti Hotel Reit, Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, each Seller warrants and represents to Buyer as follows:
4.1.1 Each Seller is a limited liability company validly formed in the State state of Delaware. Each Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by each Seller has been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which each Seller is a party. This Agreement is a legal, valid and binding obligation of each Seller, enforceable against each Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither No Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 4.1.3 To Seller’s Sellers’ knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There there are no actions, suits or proceedings pending, or, to Seller’s knowledge, pending or threatened against (ia) any portion of the Property, or (iib) affecting any Seller, which if determined adversely, may would affect its ability to perform its respective obligations hereunder.
4.1.7 4.1.4 No Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of such Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any such Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of such Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 4.1.5 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of any Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (ivb) except as provided on Schedule 4.1.10results in the creation or imposition of any lien, given notice of charge or encumbrance upon its intention property pursuant to do any of the foregoingsuch agreement or instrument.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. 4.1.6 To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s Sellers’ knowledge, the Property contains sufficient parking is in compliance with all applicable lawsstatutes, ordinancesrules, regulationsregulations and requirements of all federal, restrictions, state and covenantslocal governmental authorities.
4.1.18 4.1.7 No Seller will take or cause to be taken any action or fail to perform any obligation which would cause any of the representations or warranties contained in this Agreement to be untrue as of the Close of Escrow. A Seller shall immediately notify Buyer, in writing, of any event or condition known to such Seller which occurs prior to the Close of Escrow hereunder, which causes a change in the facts relating to, or the truth of, any of the representations or warranties.
4.1.8 No Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued engaged a real estate broker in connection with the Propertythis transaction.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of Delaware. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for the rights of first refusal in favor of the Hospital, there There are no outstanding rights of first refusal to purchase or options to purchase relating to the Property or any interest therein.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliates, and none of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)party, the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”Intentionally Omitted), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations. Except as otherwise disclosed in writing to Buyer, Seller warrants and represents to Buyer as of the date of this Agreement as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareGeorgia. Seller has full power and authority to enter into this Agreement, to perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller and, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for To the rights best of first refusal Seller’s knowledge, Seller has fee simple title to the Property, subject only to the conditions of title set forth in favor the Preliminary Report and any other matter of the Hospital, there record. There are no outstanding rights of first refusal to purchase refusal, rights of reverter or options to purchase relating to the Property or any interest therein; except the right of first offer granted to LHH. There are no unrecorded or undisclosed documents or other matters which affect title to the Property. Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to Seller’s knowledge, threatened against (ia) any portion of the Property, or (iib) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 Seller has not (ia) made a general assignment for the benefit of creditors, (iib) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any of Seller’s creditors, (iiic) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (ivd) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (ve) admitted in writing its inability to pay its debts as they come due, or (vif) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (ai) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (bii) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. , or (b) to Seller’s knowledge, results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary ReportInformation.
4.1.9 To Seller’s knowledge, there 4.1.10 There is no pending, threatened or to Seller’s knowledge contemplated condemnation proceeding relating to the Property, and Seller has not received a no notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 4.1.11 Seller has delivered or made available to Buyer a complete copies copy of the Tenant LeasesLeases and proposed amendments. To Seller’s knowledge, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease)party, the Tenant Leases. Except as provided on Schedule 4.1.10To Seller’s knowledge, neither Seller is not in default under a Tenant Lease and to Seller’s knowledge there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a landlord default under any of the Tenant Leases. To Seller’s knowledge, no tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. There are no pending or incomplete tenant improvements and unpaid tenant improvement costs and leasing commissions with respect to any Tenant Lease, except that shall be fully completed and paid in full prior to Closing or credited to Buyer at Closing as set forth in Section 5.8.2(c).
4.1.12 To Seller’s knowledge, no tenant is in default under its respective a Tenant Lease and to Seller’s knowledge 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 a tenant under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 4.1.13 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, true and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that 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 Contracts Property service contract or other such contract or agreement that has not been cured or waived.
4.1.13 4.1.14 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungi, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Representations. Seller warrants and represents to Buyer as follows:
4.1.1 Seller is a limited liability company validly formed in the State of DelawareMissouri, and qualified to do business in the State of Missouri. Seller has full power and authority to enter into this Agreement, to perform this Agreement Agreement, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has have been duly and validly authorized by all necessary action on the part of such Seller andSeller, except for approvals, waivers and consents required from the Hospital, all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except for Seller owns fee simple title to the rights interests in real property described in Section 1.1.1 above, subject only to the conditions of first refusal title set forth in favor of the Hospital, there Preliminary Report. There are no outstanding rights of first refusal to purchase refusal, rights of reverter, or options to purchase relating to the Property or any interest therein. There are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by any person.
4.1.3 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its Affiliatesaffiliates, and none nor any of their respective partners, members, shareholders or other equity owners, and to Seller’s knowledge, none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted 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, without limitation, 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 intentionally engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 To Seller’s knowledge, no No authorization, consent, consent or approval of any governmental authority (including including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending, or, to the best of Seller’s knowledge, threatened against (i) any portion of the Property, or (ii) affecting Seller, which if determined adversely, may affect its ability to perform its obligations hereunder.
4.1.7 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 an involuntary petition by any of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of 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.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (b) to Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority. Seller has not entered into any material commitments or agreements with any governmental authorities affecting the Property except as provided in the Property Information or as may be revealed in the Preliminary Report.
4.1.9 To Seller’s knowledge, there is no pending, threatened or contemplated condemnation proceeding relating to the Property, and Seller has not received a notice from any governmental agency or official to the effect that any such proceeding is threatened or contemplated.
4.1.10 Seller has delivered or made available to Buyer complete copies of the Tenant Leases, scheduled on Schedule 4.1.10
(a) to be mutually agreed upon by Buyer and Seller prior to the expiration of the Due Diligence Period and attached hereto at such time, which schedule shall be true and correct as of the date of such attachment and, except as otherwise provided herein, as of the Closing Date. Each of the Tenant Leases is in full force and effect. Seller is “landlord” or “lessor” under the Tenant Leases and is entitled to assign to Buyer, without the consent of any party (other than consents required under the Ground Lease), the Tenant Leases. Except as provided on Schedule 4.1.10, neither Seller or any Tenant is in default under its respective Tenant 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 under any of the Tenant Leases. To Seller’s knowledge, no Tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Tenant Lease. Except as provided on Schedule 4.1.10, there are no pending or incomplete tenant improvements or unpaid tenant improvement costs or rent concessions or leasing commissions with respect to any Tenant Lease. No Tenant has (i) to Seller’s knowledge, filed for bankruptcy or taken any similar debtor-protection measure, (ii) except as provided on Schedule 4.1.10, defaulted under its Tenant Lease, (iii) except as provided on Schedule 4.1.10, discontinued operations at the Property, or (iv) except as provided on Schedule 4.1.10, given notice of its intention to do any of the foregoing.
4.1.11 Seller has delivered or made available to Buyer a complete copy of the Ground Lease. The Parcel that is ground leased pursuant to a Ground Lease is accurately described in the Recitals to this Agreement, and there have been no modifications to the Ground Lease other than as described in the Recitals to this Agreement. The Ground Lease is in full force and effect. Seller is “tenant” or “lessee” under the Ground Lease and is entitled to assign to Buyer, without the consent of any party (other than the ground lessor of such Parcel (the “Ground Lessor”), the Ground Lease. To Seller’s knowledge, Ground Lessor is not in default under the Ground Lease. Seller is not in default under the Ground Lease. To Seller’s knowledge, there exists no condition or circumstance which, with the passage of time, would constitute a default by Seller or Ground Lessor under the Ground Lease. Seller has complied with the construction requirements set forth in the Ground Lease, and to Seller’s knowledge, except as may be provided in the Ground Lease Estoppel, there are no pending or incomplete improvement requirements with respect to the Ground Lease. To Seller’s knowledge, the Ground Lessor has not (i) filed for bankruptcy or taken any similar debtor protection measure, (ii) defaulted under the Ground Lease, or (iii) given its intention to do either of the foregoing.
4.1.12 Seller has delivered or made available to Buyer complete copies of all Contracts used in the ordinary course of Seller’s business that affect the Property. Seller has not, within the last year, received any written notice of any default under any Contracts that has not been cured or waived.
4.1.13 Seller has not received any written notice from, and 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.
4.1.14 To Seller’s knowledge, there are no material defects in the structural elements of the Improvements and all Improvements (including, without limitation, machinery, equipment, electrical, plumbing, heating and air conditioning systems and equipment) located on the Property are to Seller’s knowledge, in good mechanical working order, condition and repair, and are structurally safe and sound and have no material defect (reasonable wear and tear excepted), and to Seller’s knowledge, there is no leak or material defect in any roof located upon the Property.
4.1.15 Seller has not received any written notice from, and Seller is not otherwise aware of any grounds for, any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived.
4.1.16 To Seller’s knowledge, there is no pending or threatened request, application or proceeding to alter or restrict the zoning or other use restrictions applicable to the Property. To Seller’s knowledge, there is no plan, study or effort by any governmental authority or agency or any private party or entity that in any way affects or would affect the authorization of the current use and operation of the Property.
4.1.17 To Seller’s knowledge, the Property contains sufficient parking in compliance with all applicable laws, ordinances, regulations, restrictions, and covenants.
4.1.18 Seller has not received any written notice from any governmental authority of its intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property.
4.1.19 To Seller’s knowledge, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “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 Recourse 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 petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas: and (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision 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 into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has not received notice that the Property or any portion thereof contains any form of toxic mold. No treatment has been undertaken by Seller with respect to termite or similar infestation, fungithereof, or dry rot on the Property other than normal periodic service, and to the best of Sellers’ knowledge, there is no damage to any portion of the Property from termite or similar infestation, fungi or dry rot.(ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
