Warranties and Representations of Seller. Seller makes the following warranties and representations, which shall be true and correct as of the date of this Agreement and as of the date of Closing: (a) Seller is lawfully organized and existing in its state of organization and has full power and authority to convey the Real Estate to Purchaser. (b) Seller has good, merchantable and insurable title to the Real Estate, which are free and clear of all mortgages, liens, security interests, charges, claims, restrictions or other encumbrances of every kind except as otherwise specifically provided in this Agreement or as will be discharged at or before the date of Closing. There will be no restriction on the transfer of the Real Estate at the time of Closing. (c) There is no pending or threatened condemnation or similar proceeding affecting the Real Estate or any part thereof. (d) There are no claims, actions, suits or other legal or administrative proceedings, including, without limitation, bankruptcy proceedings, pending or threatened, against or involving Seller or the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate. (e) There are no leases or other contracts to which Seller is a party which affect the Real Estate, except those which shall be terminated by Seller prior to the Closing. (f) Seller is not subject to any charter, bylaw, rule, agreement or restriction of any kind or character which would prevent the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party. (g) All bills for work done or materials furnished by or at the request of Seller to or for the improvement of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real Estate. (h) At the time of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate. (i) Seller has not received any notice and is not aware of any Hazardous Substance (as defined herein) contained on or in the Real Estate. Seller has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received any notice of and has no knowledge that any governmental authority or any employee or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., or any other law, statute, regulations, or common law theory dealing with environmental matters.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Warranties and Representations of Seller. 11.1 Seller makes the following warranties hereby warrants and representations, which shall be true and correct represents to Buyer as of the date of this Agreement and as of the date of Closingfollows:
(a) Seller is lawfully organized the fee owner of the Property, and existing at the Close of Escrow, Seller shall duly convey to Buyer fee simple title to the Property subject only to the liens and exceptions specifically described in its state this Agreement. The Property shall be vacant at the Close of organization Escrow, and has full power and authority subject to convey the Real Estate to Purchaserno tenancies or occupancy agreements of any kind created by Seller or any one claiming through Seller except as set forth in Section 9.1 above.
(b) Seller has good, merchantable All taxes and insurable title to assessments against the Real Estate, which are free Property due and clear of all mortgages, liens, security interests, charges, claims, restrictions or other encumbrances of every kind except as otherwise specifically provided in this Agreement or as will be discharged at payable on or before the date Close of ClosingEscrow shall have been paid, and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessments of any type of tax or deficiency against Seller as to the Property, nor have any actions, suits, proceedings, investigations or claims for additional taxes and assessments been asserted by any taxing authority. There will be no restriction on The copies of tax bills furnished by Seller to Buyer pursuant to Section 4.2 are true, correct and complete for the transfer of the Real Estate at the time of ClosingProperty.
(c) There To Seller's current, actual knowledge, there is no litigation, proceeding (zoning, condemnation, environmental or otherwise) or governmental investigation, pending or threatened condemnation against or similar proceeding affecting relating to the Real Estate Seller, the Property or any part thereofthe transaction contemplated by the Agreement, except for that certain action filed by Kenneth K. Williams against xxx Xxxx Xxxxxxx xf the City of Las Vegas and Bonanza Realty, Inc. in Clark County District Court xxx being Case Number A 460607.
(d) There Seller is not aware of any facts which prohibit it from closing this Agreement in accordance with the terms thereof.
(e) To Seller's current, actual knowledge, except as set forth in the following sentence, the Property is not in violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and groundwater condition. To Seller's current, actual knowledge, except with respect to certain asbestos identified in an environmental audit delivered to Buyer, there are not now, nor has there previously been, any substances on, under, in or about the Property which are or were classified as "toxic", "hazardous materials", or "hazardous substances" under any local, state or federal law, rule, ordinance, regulation or order. To Seller's current, actual knowledge, there are no claimsunderground storage tanks located under the Property.
(f) The execution and delivery of this Agreement and the consummation of the transaction contemplated hereby will not result in any breach of the terms, actionsconditions or constitute a default under any instrument or obligation to which Seller is now a party, suits or other legal by which Seller may be bound or administrative proceedingsaffected, includingor violate any order writ, without limitationinjunction or decree of any court in any litigation to which Seller is a party.
(g) All requisite action (corporate, bankruptcy proceedingstrust, pending partnership or threatenedotherwise) has been taken by Seller in connection with entering into this Agreement, against or involving Seller or the Real Estate which could affect instruments referenced herein, and the consummation of the transactions contemplated hereby. No consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority or agency or other party is required. This Agreement constitutes the legal, valid and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations binding obligation of Seller enforceable against Seller or the Real Estate.
(e) There are no leases or other contracts to which Seller is a party which affect the Real Estatein accordance with its terms, except those which shall be terminated as limited by Seller prior to the Closing.
(f) Seller is not subject to any charterbankruptcy, bylawinsolvency, rulereorganization, agreement or restriction moratorium and other similar laws of any kind or character which would prevent the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party.
(g) All bills for work done or materials furnished by or at the request of Seller general applicability relating to or for affecting the improvement enforcement of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real Estatecreditors' rights and general equitable principles.
(h) At The individuals executing this Agreement and instruments referenced herein on behalf of Seller and the time partners, officers or trustees of ClosingSeller, no person or entityif any, other than Purchaserhave the legal power, will right, and actual authority to bind Seller to the terms and conditions hereof and thereof. The execution, delivery and performance of this Agreement have any right been duly authorized by all necessary action on the part of possession to any portion of the Real EstateSeller.
(i) Seller has not received any notice and is not aware of any Hazardous Substance No "Bankruptcy/Dissolution Event (as defined below) has occurred with respect to Seller. As used herein, a "Bankruptcy/Dissolution Event" means any of the following: (i) contained on the commencement of a case under Title 11 of the United States Code, as not constituted or in the Real Estate. Seller has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Real Estatehereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the generationappointment of a trustee or receiver for any property interest; (iii) an assignment for the benefit of creditors; (iv) an attachment, transportationexecution or other judicial seizure of a substantial property interest; (v) the taking of, storage, treatmentfailure to take, or disposal at the Real Estatesubmission to any action indicating an inability to meet its financial obligations as they accrue; or (vi) a dissolution or liquidation, of any Hazardous Substance. Seller has not received any notice of and has no knowledge that any governmental authority death or any employee or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seqincapacity., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., or any other law, statute, regulations, or common law theory dealing with environmental matters.
Appears in 1 contract
Samples: Purchase and Sale Agreement (McCarthy Grenache Inc)
Warranties and Representations of Seller. Seller makes the following warranties and representations, which shall be true and correct as of the date of To induce Purchaser to enter into this Agreement and to purchase the Property as of herein provided, the date of Closingfollowing covenants, representations and warranties are made by Sellers to Purchaser:
(a) Seller is lawfully organized presently owns good and existing in its state of organization and has full power and authority marketable fee simple title to convey the Real Estate Property, subject only to Purchaserthe Permitted Exceptions.
(b) No notice has been received and Seller has good, merchantable and insurable title to no knowledge that the Real Estate, which are free and clear of all mortgages, liens, security interests, charges, claims, restrictions Property or other encumbrances of every kind except as otherwise specifically provided in this Agreement any portion or as portions thereof is or will be discharged at subject to or before the date of Closing. There will be no restriction on the transfer of the Real Estate at the time of Closingaffected by any (i) special assessments, whether or not presently aliened thereon, or (ii) condemnation or similar proceedings.
(c) There Seller is not a party to any actions, suits, or proceedings of any kind or nature whatsoever, legal or equitable, affecting any portion of the Property or relating to or arising out of the ownership of the Property in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality, that there are no such actions, suits or proceedings pending, and that there is no proceeding pending for the reduction of or threatened condemnation or similar proceeding affecting an increase in the Real Estate assessed valuation of the Property or any part portion or portions thereof.
(d) There Seller has no knowledge or notice of any suits, judgments, summonses or proceedings relating to or arising out of any actual or alleged violation or breach of, or any deficiency under, any zoning, building, plumbing, electrical, fire, public hazard, occupational safety, pollution, environmental protection or waste disposal ordinance, code, law, rule, requirement, or regulation of any entity having jurisdiction over the Property which has not been heretofore corrected or alleviated.
(e) The Property, and the present operation thereof, fully complies with all ordinances, codes, laws, rules, requirements and regulations of every entity having jurisdiction over the Property, and the Improvements conform in all respects to the present zoning classification of the Property, and the operation and maintenance of the Improvements do not violate any provision or provisions of applicable zoning ordinance.
(f) The Property is now and, subject to damage by fire or other peril, will at the Closing be in good operating condition and repair; and materials, supplies and goods now in hand, in the aggregate are adequate for the continued normal operation of the business of Seller with respect to the Property.
(g) Within five (5) days after the Effective Date of this Agreement, Seller shall furnish to Purchaser true, correct and complete copies of all contracts and agreements (collectively the "Service Contracts"), if any exist, now in force with respect to the maintenance and operation of and the providing of utilities and other services to, or for the benefit of, the Property; the Service Contracts constitute all of the contracts, agreements and understandings which are known to Seller to affect or relate to the Property, the operation and maintenance thereof, and the providing of utilities and other services thereto; and neither Seller, nor their agents or employees have knowledge or notice of any default under any Service Contract, or knowledge or notice of any event which but for the passage of time or the giving of notice, or both, would constitute a default under any Service Contract, and the Service Contracts can be terminated upon thirty (30) days notice.
(h) Within five (5) days after the Effective Date of this Agreement, Seller shall furnish to Purchaser true and correct copies of all fire and casualty insurance, hazard insurance, workmen's compensation insurance and public liability insurance affecting or relating to the Property and the activities conducted therein or thereon, and copies of all policies providing insurance benefits to agents or employees of Seller, together with all endorsements to the modifications of the foregoing policies or any of them, the premiums of which have all been paid in full.
(i) A certificate of occupancy for the Improvements has been issued and is in full force and effect, and no change, alteration or improvement has been made to the Improvements which might invalidate that certificate; the Improvements are being used in conformity with such certificate of occupancy and there are no claimsviolations of the terms and conditions thereof; and all of the licenses, actionspermits, suits authorizations and approvals required by all governmental authorities having jurisdiction, and any requisite certificates of the Board of Fire Underwriters, or similar boards of agencies, have been issued for the Improvements and are in full force and effect, and all fees and charges payable with respect thereto have been paid.
(j) All bills for labor, services, materials, and utilities, and all trade accounts, which are in any way connected with or arise from the operation of the Property, are current.
(k) Seller shall maintain all insurance policies referenced in subparagraph (g) above in full force and effect until the Closing Date. The Improvements, and Seller's operation thereof, are in compliance with all applicable policies of insurance and neither Seller nor any agent or employee of Seller, has knowledge or notice of any actual or threatened cancellation of any insurance coverage or of any increase in the rate of premium for the risks now insured against or required to be insured against with respect to the Improvements.
(l) No work has been done upon, or materials delivered to, the Property prior to the date hereof which is not fully paid for, nor does any person, firm or corporation now have, nor shall it have after notice or passage of time, or otherwise, any lien rights with respect to the Property or any part or parcel thereof as a result of services performed on, or materials delivered to, the Property.
(m) No person, firm or other legal entity whatsoever has any right or administrative proceedings, including, without limitation, bankruptcy proceedings, pending option whatsoever to acquire the Property or threatened, against any portion or involving Seller portions thereof or the Real Estate which could affect any interest or interests therein.
(n) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, herein shall not and there are no facts which might result in do not constitute a violation or breach by Seller of any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.
(e) There are no leases provision of any agreement or other contracts instrument to which Seller is a party or to which affect the Real EstateSeller may be subject although not a party, except those which shall be terminated by Seller prior to the Closingnor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
(fo) Seller is not subject to any charterTo the best of Seller's knowledge, bylawthe Improvements are free and clear of termites, rulefungus, agreement dry rot, beetles, other wood destroying insects, faulty grade levels, cellulose debris and excessive moisture conditions, and on or restriction of any kind or character which would prevent before the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other partyClosing Date.
(gp) All bills for work done or materials furnished by or at To the request best of Seller to or for Seller's knowledge, the improvement Improvements are structurally sound, free from latent and patent defects, situated within the boundaries of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real EstateProperty.
(hq) At To the time best of ClosingSeller's knowledge, the Improvements contain no person or entityasbestos, other than Purchaser, will have any right of possession to any portion of the Real Estateand no asbestos was used in this construction.
(ir) Seller has not received entered into any notice and is contract, agreement or understanding, oral or written, not aware of any Hazardous Substance (as defined herein) contained on or in referred to herein with respect to the Tangible Personal Property, the Improvements, the Real Estate. Seller has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Real EstateProperty, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received any notice of and has no knowledge that any governmental authority or any employee or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substanceoperation thereof. Seller shall promptly give Purchaser copies of take, or cause to be taken, all action necessary to cause each representation and warranty herein made to remain true and correct in all respects continuously from the date hereof through the Closing Date, and shall refrain from taking any action or failing to take any action which may cause, or threaten to cause, any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means warranties and representations to become incorrect or untrue at any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq.time during such period, or any other lawat the Closing. At the Closing, statuteSeller shall reaffirm all said warranties and representations as of the Closing Date, regulations, or common law theory dealing with environmental mattersto the same extent and effect as if made on and as of the Closing Date.
Appears in 1 contract
Warranties and Representations of Seller. Seller To induce Purchaser to enter into this Agreement and to purchase the Property, Seller, in addition to the other representations and warranties set forth herein, makes the following warranties representations and representationswarranties, each of which is material and is being relied upon by Purchaser and shall survive the Closing.
8 A. Seller owns fee simple marketable record title to the Property, free and clear of all liens, special assessments, easements, reservations, restrictions and encumbrances other than the Permitted Exceptions and there is no tenancy, rental or other occupancy agreements affecting the Property.
8 B. Seller has not received any notice, and has no knowledge, that the Property or any portion or portions thereof is or will be subject to or affected by (i) any special assessments, whether or not presently a lien thereon, or (ii) any condemnation, eminent domain, change in grade of public streets, or similar proceeding.
8 C. There are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the Property or any portion or portions thereof or relating to or arising out of the ownership of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.
8 D. Seller has the full right, power and authority to enter into and deliver this Agreement and to consummate the purchase and sale of the Property in accordance herewith and to perform all covenants and agreements of Seller hereunder.
8 E. Seller has no knowledge or notice that any present default or breach exists under any mortgage or other encumbrance encumbering the Property or any covenants, conditions, restrictions, rights-of-way or easements which may affect the Property or any portion or portions thereof and that no condition or circumstance exists which, with the passage of time and/or the giving of notice, or otherwise, would constitute or result in a default or breach under any such covenants, conditions, restrictions, rights-of-way or easements.
8 F. All public utilities including, without limitation, storm sewer, electricity, water, sanitary sewer and telephone service are available at the boundary of the Property for utilization by Purchaser in quantities, forces and/or pressures sufficient to fully service the Property in accordance with all requirements of all applicable utility companies and governmental authorities.
8 G. The Property has full, free and adjacent access to and from public highways and roads, and Seller has no knowledge of any fact or condition that would result in the termination of such access.
8 H. No commitments have been made to any governmental authority (other than Purchaser), utility company, school board, church or other religious body, or any homeowners association, or to any other organization, group, or individual, relating to the Property which would impose an obligation upon Purchaser or its successors or assigns to make any contribution or dedications of money or land or to construct, install, or maintain any improvements of a public or private nature on or off the Property. The provisions of this Subparagraph shall not apply to any general real estate taxes.
8 I. Seller has not received any notice and has no knowledge that the Property has ever been used by previous owners and/or operators or Seller to generate, manufacture, refine, transport, treat, store, handle or dispose of Hazardous Substances. Seller has no knowledge of the Property having ever contained nor does it now contain either asbestos, PCBs or other toxic materials, whether used in construction or stored on the Property, and Seller has not received a summons, citation, directive, letter or other communication, written or oral, from any agency or Department of the State of Florida or the U.S. Government concerning any intentional or unintentional action or omission on Seller's part which has resulted in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of Hazardous Substances.
8 J. To the best of Seller's knowledge, there are no pollutants, contaminants, petroleum products or petroleum by-products, toxins, carcinogens, asbestos, or Hazardous Substances on or beneath the surface of the Property, which Seller or any other person or entity has placed or caused or allowed to be placed upon the Property, and which have caused or which may cause any investigation by any agency or instrumentality of government, which are or may be on the Property in violation of any law or regulation of any local, state or federal government, or which are or may be a nuisance or health threat to occupants of the Property or other residents of the area.
8 K. Seller has no knowledge of any anti-pollution, Environmental Laws, rules, regulations, ordinances, orders or directives which would hinder, prevent or substantially obstruct Purchaser's enjoyment and use of the Property.
8 L. No portion of the Property is a wetland within the jurisdiction of DEP, the Corps, the District or any agency of the County or City in which the Property is located other than those depicted on the survey as provided in paragraph 5.
8 M. No person, firm or other legal entity other than Purchaser has any right or option whatsoever to acquire the Property or any portion or portions thereof or any interest or interest therein.
8 N. The execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or to which Seller may be subject although not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
8 O. Seller is a United States resident, not a foreign person (as such terms are defined in the Internal Revenue Code and Income Tax Regulations), for purposes of U.S. income taxation and no withholding of sale proceeds is required with respect to Seller's interest in the Property under Section 1445(a) of the Internal Revenue Code.
8 P. Each and every one of the foregoing representations and warranties is true and correct as of the Effective Date, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the date Closing Date.
8 Q. In the event that changes occur as to any information, documents or exhibits referred to in the subparagraphs of this Agreement and as Paragraph, or in any other part of the date this Agreement, of Closing:
(a) Seller is lawfully organized and existing in its state of organization and has full power and authority to convey the Real Estate to Purchaser.
(b) which Seller has goodknowledge, merchantable Seller will immediately disclose same to Purchaser in writing when first available to Seller; and insurable title to in the Real Estate, which are free and clear of all mortgages, liens, security interests, charges, claims, restrictions or other encumbrances of every kind except as otherwise specifically provided in this Agreement or as will be discharged at or before the date of Closing. There will be no restriction on the transfer of the Real Estate at the time of Closing.
(c) There is no pending or threatened condemnation or similar proceeding affecting the Real Estate or any part thereof.
(d) There are no claims, actions, suits or other legal or administrative proceedings, including, without limitation, bankruptcy proceedings, pending or threatened, against or involving Seller or the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.
(e) There are no leases or other contracts to which Seller is a party which affect the Real Estate, except those which shall be terminated by Seller prior to the Closing.
(f) Seller is not subject to any charter, bylaw, rule, agreement or restriction event of any kind or character which would prevent the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party.
(g) All bills for work done or materials furnished by or at the request of Seller to or for the improvement of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real Estate.
(h) At the time of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate.
(i) Seller has not received any notice and is not aware of any Hazardous Substance (as defined herein) contained on or in the Real Estate. Seller has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received any notice of and has no knowledge that any governmental authority or any employee or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices change which may be received deemed by Seller. For purposes of Purchaser to be materially adverse, Purchaser may, at its election, terminate this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seqAgreement., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., or any other law, statute, regulations, or common law theory dealing with environmental matters.
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Warranties and Representations of Seller. Seller ---------------------------------------- makes the following warranties and representations, representations to Buyer which shall be true and correct as of the date of this Agreement Effective Date and as of the date of ClosingClosing Date:
(a) Seller is lawfully organized and existing in its state of organization and has full power and authority holds fee simple marketable record title to convey the Real Estate to PurchaserProperty and Improvements, free and clear of all liens and encumbrances except liens which will be satisfied or released at Closing.
(b) Seller has good, merchantable and insurable title to the Real Estate, which are free and clear received no written notice of any proposed or pending special assessments or condemnation proceedings against all mortgages, liens, security interests, charges, claims, restrictions or other encumbrances of every kind except as otherwise specifically provided in this Agreement or as will be discharged at or before the date of Closing. There will be no restriction on the transfer any portion of the Real Estate at the time of ClosingProperty.
(c) There is are no pending lawsuits or administrative proceedings pending, and Seller has not received written notice of any threatened condemnation lawsuits or similar proceeding affecting administrative proceedings, against Seller or the Real Estate Property, whether or any part thereofnot such lawsuits or proceedings are covered by insurance.
(d) There are Seller has received no claimswritten notice that the Property is not in full compliance with all laws, actionsrules, suits or other legal or administrative proceedingsregulations, includingordinances, without limitationpermits, bankruptcy proceedingsorders, pending or threatenedapprovals, against or involving authorizations, and covenants which relate in any manner to the Property, specifically including all fire and health codes, and Seller or has not received any written notice that Seller does not hold all permits and governmental approvals necessary to operate a rental business on the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real EstateProperty.
(e) There are Seller has received no leases or other contracts to which written notice that Seller is a party in default pursuant to any contract agreement, or understanding which affect the Real Estate, except those which shall be terminated by Seller prior relates in any manner to the ClosingProperty.
(f) Seller is has not subject entered into any agreements or contracts (written, oral, or contingent) for the sale of any interest in the Property to any charter, bylaw, rule, agreement or restriction of any kind or character which would prevent the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any party other partythan Buyer.
(g) All bills for work done No person, firm, or materials furnished by entity except Seller and CPA Associates (pursuant to a verbal lease) has any interest in all or at the request of Seller to or for the improvement any portion of the Real Estate will have been paid in fullProperty except Tenants currently occupying the Improvements pursuant to a written Lease and the holders of easements, or provision made for paymentif any, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against over the Real EstateProperty, as identified in the Title Insurance Commitment.
(h) At the time of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate.
(i) Seller has not received any written notice and is not aware of any Hazardous Substance (as defined herein) contained pollutants, contaminants, petroleum products or by-products, asbestos or other hazardous substances on or beneath the surface of the Real Property or in the Real EstateImprovements which violate any law, ordinance, rule, or regulation applicable to the Property, or which are or may be a nuisance or health threat to occupants of the Improvements except as set forth in that certain Phase II Environmental Site Assessment prepared by Environmental Safety Consultants. Inc., dated January 12, 1999.
(i) The Property has access to 13th Street West anx 00xx Xxxxxx Xxxx xxx xxx xxxxxxx xxtrances and exits.
(j) No persons or entities have any right to display any signs or symbols on the exterior of the improvements except CPA Associates, Republic Bank, and Smith Barney.
(x) All rents due under the Leases are current. Seller has not received no written notice of that any other duties and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or obligations set forth in the Real EstateLeases are not in full force and effect in accordance with their terms, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. and Seller has not received any written notice of and has no knowledge that any governmental authority or party is currently in default under any employee or agent thereof has determined that there of the Leases, except the Republic Bank lease expires on January 15, 2004, and the WorldCom lease described in Subparagraph (p) below is a presencein default, release, threat of release, placement on or and WorldCom is in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. bankruptcy.
(l) Seller has not received notice any advanced payment of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., rent or any other lawsums from any Tenant which is not set forth in the Lease with that Tenant.
(m) Seller has taken all company action necessary to approve the Transaction, statuteand Seller has the full right, regulationspower, and authority to enter into and deliver this Agreement and to perform all covenants and agreements of Seller hereunder.
(n) There are no outstanding insurance claims for damage to the Improvements or Personal Property of Seller.
(o) Seller is the sole owner of the Personal Property, free and clear of all liens and encumbrances except liens which will be satisfied or released at Closing.
(p) There are no leases, licenses, or common law theory dealing with environmental matters.use rights to place any antennas, towers, microwave equipment, cellular phone equipment or other similar structures on the roof of the building located upon the Real Property, except the WorldCom and BreakFree Wireless Corporation antenna leases more particularly described in Exhibit B, attached hereto and made a part hereof. At the request of Buyer, Seller will sign an Affidavit at Closing specifically confirming that the warranties and representations set forth in this Paragraph are true and correct as of the Closing Date. If any of the warranties or representations are not materially true as of the Effective Date or the Closing Date and are discovered:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Coast Financial Holdings Inc)
Warranties and Representations of Seller. Seller To induce Purchaser to enter into this Agreement and to purchase the Property, Seller, in addition to the other representations and warranties set forth herein, makes the following warranties representations and representationswarranties, each of which is material and is being relied upon by Purchaser and shall survive Closing hereunder or merge into the Deed;
A. That Seller owns fee simple record title to the Property, free and clear of all liens, special assessments, easements, reservations, restrictions and encumbrances other than the Permitted Exceptions and there are no tenancy, rental, leases, licenses, parties in possession, or other occupancy rights or agreements affecting the Property.
B. That Seller has not received any notice, and has no knowledge, that the Property or any portion or portions thereof is or will be subject to or affected by:
i. any special assessments, whether or not presently a lien thereon; or
ii. any condemnation, eminent domain, change in grade of public streets, or similar proceeding.
C. That there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the Property or any portion or portions thereof or relating to or arising out of the ownership of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.
D. Seller has the full right, power and authority to enter into and deliver this Agreement and to consummate the purchase and sale of the Property in accordance herewith and to perform all covenants and agreements of Seller hereunder.
E. Seller has no knowledge or notice that any present default or breach exists under any mortgage or other encumbrance encumbering the Property or any covenants, conditions, restrictions, rights-of-way or easements which may affect the Property or any portion or portions thereof and that, to the best of Seller’s knowledge, no condition or circumstance exists which, with the passage of time and/or the giving of notice, or otherwise, would constitute or result in a default or breach under any such covenants, conditions, restrictions, rights-of-way or easements.
F. No commitments have been made to any governmental authority, utility company, school board, church or other religious body, or any homeowners association, or to any other organization, group, or individual, relating to the Property which would impose an obligation upon Purchaser or its successors or assigns to make any contribution or dedications of money or land or to construct, install, or maintain any improvements of a public or private nature on or off the Property, and no governmental authority has imposed any requirement that any Seller's Initials: __________ Purchaser's Initials: __________ {O1117744;9} developer of the Property pay directly or indirectly any special fees or contributions or incur any expenses or obligations in connection with any development of the Property or any part thereof. The provisions of this Section shall not apply to any general real estate taxes.
G. Seller has not received any notice and has no actual knowledge that the Property has ever been used by previous owners and/or operators or Seller to generate, manufacture, refine, transport, treat, store, handle or dispose of Hazardous Substance. Seller has no actual knowledge of the Property having ever contained asbestos, PCB or other toxic materials.
H. To the best Seller's actual knowledge, there are no pollutants, contaminants, petroleum products or by-products, asbestos or other substances, whether hazardous or not, on or beneath the surface of the Property.
I. To the best of Seller’s actual knowledge, the Property has full, free and adjacent access to and from public highways and roads, and Seller has no actual knowledge of any fact or condition which would result in the termination of such access.
J. No person, firm or other legal entity other than Purchaser has any right or option whatsoever to acquire the Property or any portion or portions thereof or any interest therein.
K. There are no leases of any portion of the Property.
L. To the best of Seller’s knowledge, Seller is not in violation of any law, regulation or ordinance governing the Property.
M. The execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or to which Seller may be subject although not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
N. Seller is a Florida limited liability company, not a foreign person (as such terms are defined in the Internal Revenue Code and Income Tax Regulations), for purposes of U.S. income taxation and that Seller's U.S. Taxpayer Identification Number is 00-0000000, and no withholding of sale proceeds is required with respect to Seller's interest in the Property under Section 1445(a) of the Internal Revenue Code.
Q. There are no service contracts, maintenance or management agreements, commission or brokerage agreements, or other similar agreements affecting the Property except as set forth on Exhibit "B". Seller's Initials: __________ Purchaser's Initials: __________ {O1117744;9}
R. After the Effective Date, Seller shall not place or bury any debris, refuse, material, garbage, vehicles or items of any nature (collectively, "Debris") on the Land prior to the Closing. If Seller does place or bury any Debris on the Land in violation of this representation and warranty, Purchaser may, at its election, (i) require Seller to remove any such Debris, as a Condition Precedent, which removal shall be in accordance with all applicable provisions of state and/or federal law governing the removal of such Debris; or (ii) remove the above referenced Debris post-Closing, in which event the Purchase Price shall be reduced by the estimated cost of removal as evidenced by written estimate obtained by Purchaser from a firm properly licensed and authorized to make such removal.
S. That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the date Closing Date. In the event that changes occur as to any information, documents or exhibits referred to in the subsections of this Section 9, or in any other part of this Agreement, of which Seller has knowledge or becomes aware of, Seller will immediately disclose same to Purchaser when first available to Seller; and in the event of any change which may be deemed by Purchaser to be materially adverse, Purchaser may, at its election, terminate this Agreement and obtain a refund of the Xxxxxxx Money, whereupon neither party shall have any obligations to the other hereunder, except for those obligations which expressly survive the termination of this Agreement. At Closing, Seller shall, in writing, reaffirm to Purchaser the truth and correctness, as of the date Closing Date, of Closing:
each of the warranties and representations contained herein and agrees to indemnify and hold Purchaser harmless from any loss or damage suffered by Purchaser on account of the breach or incorrectness of any such warranties or representations, which indemnification and hold harmless obligation shall survive Closing for a period of nine (a9) Seller is lawfully organized months and existing in its state shall not merge into the Deed. In the event that any of organization the representations and has full power and authority to convey the Real Estate to Purchaser.
(b) Seller has good, merchantable and insurable title warranties of this Section 9 which are qualified “to the Real Estatebest of Seller’s knowledge” would be inaccurate at Closing after the deletion of the Seller’s knowledge qualification, which are free Purchaser may terminate this Agreement, receive a full refund of the Xxxxxxx Money, and clear be relieved of all mortgagesany duties, liens, security interests, charges, claims, restrictions obligations and liability hereunder Any action by Purchaser against Seller for a breach or other encumbrances failure of every kind except as otherwise specifically provided any of the representations or warranties in this Section 9 or elsewhere in this Agreement or as will in the Closing Documents must be discharged at or before commenced within said nine (9) month period. At the date of Closing. There will be no restriction on the transfer end of the Real Estate at nine (9) month period, Seller shall have no further liability with respect to the time of Closing.
(c) There is no pending or threatened condemnation or similar proceeding affecting the Real Estate or any part thereof.
(d) There are no claimsrepresentations and warranties in this Section 9 except for those, actionsif any, suits or other legal or administrative proceedings, including, without limitation, bankruptcy proceedings, pending or threatened, against or involving Seller or the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.
(e) There are no leases or other contracts with respect to which Seller is suit has been filed in a party which affect the Real Estate, except those which shall be terminated by Seller prior court of competent jurisdiction within said nine (9) month period. Notwithstanding anything in this Section 9 to the Closing.
(f) Seller is not subject to any chartercontrary, bylawif, rule, agreement or restriction of any kind or character which would prevent between the consummation Effective Date of this Agreement and the transactions contemplated herebyClosing Date, Seller learns of information such that any of Seller’s representations and warranties in this Section 9 are or have become materially inaccurate, Seller shall provide Purchaser with written notice thereof. Seller has full power and authority Purchaser shall then have ten (10) days after receipt of such notice in which to execute elect, as its sole remedy, to terminate this Agreement and all documents necessary by giving written notice thereof to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party.
(g) All bills for work done or materials furnished by or at the request of Seller to or for the improvement of the Real Estate will have been paid in fullSeller, or provision made to accept such changed representation or warranty and at Closing Seller’s representations and warranties in this Section 9 shall be deemed modified accordingly. If Purchaser exercises its option to terminate Seller's Initials: __________ Purchaser's Initials: __________ {O1117744;9} this Agreement, the Xxxxxxx Money shall be returned to Purchaser and the parties shall be without further duties or obligations to one another under this Agreement, except for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against those obligations which expressly survive the Real Estate.
(h) At the time termination of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate.
(i) this Agreement. If Seller has not received any notice and is not aware of any Hazardous Substance (as defined herein) contained on or in the Real Estate. Seller has not received written notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges election from Purchaser within the presenceaforesaid ten (10) day period, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous SubstancePurchaser shall be deemed to have elected to accept such changed representations and/or warranties. Seller has not received any notice of and has no knowledge If Purchaser learns that any governmental authority of Seller’s representations and warranties in this Section 9 are or any employee have become materially inaccurate, and Purchaser closes nonetheless, Purchaser shall be deemed to have accepted such failure of representation or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of warranty and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seqhave no liability with respect thereto., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., or any other law, statute, regulations, or common law theory dealing with environmental matters.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Florida Public Utilities Co)
Warranties and Representations of Seller. Seller To induce Purchaser to enter into this Agreement and to purchase the Property, Seller, in addition to the other representations and warranties set forth herein, makes the following warranties representations and representationswarranties, each of which is material and is being relied upon by Purchaser and shall survive Closing hereunder or merge into the Deed;
A. That Seller owns fee simple record title to the Property, free and clear of all liens, special assessments, easements, reservations, restrictions and encumbrances other than the Permitted Exceptions and there are no tenancy, rental, leases, licenses, parties in possession, or other occupancy rights or agreements affecting the Property. Seller's Initials: Purchaser's Initials:
B. That Seller has not received any notice, and has no knowledge, that the Property or any portion or portions thereof is or will be subject to or affected by:
i. any special assessments, whether or not presently a lien thereon; or
ii. any condemnation, eminent domain, change in grade of public streets, or similar proceeding.
C. That there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the Property or any portion or portions thereof or relating to or arising out of the ownership of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.
D. Seller has the full right, power and authority to enter into and deliver this Agreement and to consummate the purchase and sale of the Property in accordance herewith and to perform all covenants and agreements of Seller hereunder.
E. Seller has no knowledge or notice that any present default or breach exists under any mortgage or other encumbrance encumbering the Property or any covenants, conditions, restrictions, rights-of-way or easements which may affect the Property or any portion or portions thereof and that, to the best of Seller’s knowledge, no condition or circumstance exists which, with the passage of time and/or the giving of notice, or otherwise, would constitute or result in a default or breach under any such covenants, conditions, restrictions, rights-of-way or easements.
F. No commitments have been made to any governmental authority, utility company, school board, church or other religious body, or any homeowners association, or to any other organization, group, or individual, relating to the Property which would impose an obligation upon Purchaser or its successors or assigns to make any contribution or dedications of money or land or to construct, install, or maintain any improvements of a public or private nature on or off the Property, and no governmental authority has imposed any requirement that any developer of the Property pay directly or indirectly any special fees or contributions or incur any expenses or obligations in connection with any development of the Property or any part thereof. The provisions of this Section shall not apply to any general real estate taxes.
G. Seller has not received any notice and has no actual knowledge that the Property has ever been used by previous owners and/or operators or Seller to generate, manufacture, refine, transport, treat, store, handle or dispose of Hazardous Substance. Seller has no actual knowledge of the Property having ever contained asbestos, PCB or other toxic materials. Seller's Initials: Purchaser's Initials:
H. To the best Seller's actual knowledge, there are no pollutants, contaminants, petroleum products or by-products, asbestos or other substances, whether hazardous or not, on or beneath the surface of the Property.
I. To the best of Seller’s actual knowledge, the Property has full, free and adjacent access to and from public highways and roads, and Seller has no actual knowledge of any fact or condition which would result in the termination of such access.
J. No person, firm or other legal entity other than Purchaser has any right or option whatsoever to acquire the Property or any portion or portions thereof or any interest therein.
K. There are no leases of any portion of the Property.
L. To the best of Seller’s knowledge, Seller is not in violation of any law, regulation or ordinance governing the Property.
M. The execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or to which Seller may be subject although not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
N. Seller is a Florida limited liability company, not a foreign person (as such terms are defined in the Internal Revenue Code and Income Tax Regulations), for purposes of U.S. income taxation and that Seller's U.S. Taxpayer Identification Number is 00-0000000, and no withholding of sale proceeds is required with respect to Seller's interest in the Property under Section 1445(a) of the Internal Revenue Code.
Q. There are no service contracts, maintenance or management agreements, commission or brokerage agreements, or other similar agreements affecting the Property except as set forth on Exhibit "B".
R. After the Effective Date, Seller shall not place or bury any debris, refuse, material, garbage, vehicles or items of any nature (collectively, "Debris") on the Land prior to the Closing. If Seller does place or bury any Debris on the Land in violation of this representation and warranty, Purchaser may, at its election, (i) require Seller to remove any such Debris, as a Condition Precedent, which removal shall be in accordance with all applicable provisions of state and/or federal law governing the removal of such Debris; or (ii) remove the above referenced Debris post-Closing, in which event the Purchase Price shall be reduced by the estimated cost of removal as evidenced by written estimate obtained by Purchaser from a firm properly licensed and authorized to make such removal. Seller's Initials: Purchaser's Initials:
S. That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the date Closing Date. In the event that changes occur as to any information, documents or exhibits referred to in the subsections of this Section 9, or in any other part of this Agreement, of which Seller has knowledge or becomes aware of, Seller will immediately disclose same to Purchaser when first available to Seller; and in the event of any change which may be deemed by Purchaser to be materially adverse, Purchaser may, at its election, terminate this Agreement and obtain a refund of the Exxxxxx Money, whereupon neither party shall have any obligations to the other hereunder, except for those obligations which expressly survive the termination of this Agreement. At Closing, Seller shall, in writing, reaffirm to Purchaser the truth and correctness, as of the date Closing Date, of Closing:
each of the warranties and representations contained herein and agrees to indemnify and hold Purchaser harmless from any loss or damage suffered by Purchaser on account of the breach or incorrectness of any such warranties or representations, which indemnification and hold harmless obligation shall survive Closing for a period of nine (a9) Seller is lawfully organized months and existing in its state shall not merge into the Deed. In the event that any of organization the representations and has full power and authority to convey the Real Estate to Purchaser.
(b) Seller has good, merchantable and insurable title warranties of this Section 9 which are qualified “to the Real Estatebest of Seller’s knowledge” would be inaccurate at Closing after the deletion of the Seller’s knowledge qualification, which are free Purchaser may terminate this Agreement, receive a full refund of the Exxxxxx Money, and clear be relieved of all mortgagesany duties, liens, security interests, charges, claims, restrictions obligations and liability hereunder Any action by Purchaser against Seller for a breach or other encumbrances failure of every kind except as otherwise specifically provided any of the representations or warranties in this Section 9 or elsewhere in this Agreement or as will in the Closing Documents must be discharged at or before commenced within said nine (9) month period. At the date of Closing. There will be no restriction on the transfer end of the Real Estate at nine (9) month period, Seller shall have no further liability with respect to the time of Closing.
(c) There is no pending or threatened condemnation or similar proceeding affecting the Real Estate or any part thereof.
(d) There are no claimsrepresentations and warranties in this Section 9 except for those, actionsif any, suits or other legal or administrative proceedings, including, without limitation, bankruptcy proceedings, pending or threatened, against or involving Seller or the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.
(e) There are no leases or other contracts with respect to which Seller is suit has been filed in a party which affect the Real Estate, except those which shall be terminated by Seller prior court of competent jurisdiction within said nine (9) month period. Notwithstanding anything in this Section 9 to the Closing.
(f) Seller is not subject to any chartercontrary, bylawif, rule, agreement or restriction of any kind or character which would prevent between the consummation Effective Date of this Agreement and the transactions contemplated herebyClosing Date, Seller learns of information such that any of Seller’s representations and warranties in this Section 9 are or have become materially inaccurate, Seller shall provide Purchaser with written notice thereof. Seller has full power and authority Purchaser shall then have ten (10) days after receipt of such notice in which to execute elect, as its sole remedy, to terminate this Agreement and all documents necessary by giving written notice thereof to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party.
(g) All bills for work done or materials furnished by or at the request of Seller to or for the improvement of the Real Estate will have been paid in fullSeller, or provision made to accept such changed representation or warranty and at Closing Seller’s representations and warranties in this Section 9 shall be deemed modified accordingly. If Purchaser exercises its option to terminate this Agreement, the Exxxxxx Money shall be returned to Purchaser and the parties shall be without further duties or obligations to one another under this Agreement, except for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against those obligations which expressly survive the Real Estate.
(h) At the time termination of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate.
(i) this Agreement. If Seller has not received any notice and is not aware of any Hazardous Substance (as defined herein) contained on or in the Real Estate. Seller has not received written notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges election from Purchaser within the presenceaforesaid ten (10) day period, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous SubstancePurchaser shall be deemed to have elected to accept such changed representations and/or warranties. Seller has not received any notice of and has no knowledge If Purchaser learns that any governmental authority of Seller’s representations and warranties in this Section 9 are or any employee have become materially inaccurate, and Purchaser closes nonetheless, Purchaser shall be deemed to have accepted such failure of representation or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of warranty and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give Purchaser copies of any such notices which may be received by have no liability with respect thereto. Seller. For purposes of this paragraph, Hazardous Substance means any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., or any other law, statute, regulations, or common law theory dealing with environmental matters.'s Initials: Purchaser's Initials:
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Florida Public Utilities Co)
Warranties and Representations of Seller. Seller makes the following warranties and representations, which shall be true and correct as of the date of To induce Purchaser to enter into this Agreement and to purchase the Property as of herein provided, the date of Closingfollowing covenants, representations and warranties are made by Seller and Shareholders to Purchaser:
(a) Seller is lawfully organized presently owns good and existing in its state of organization and has full power and authority marketable fee simple title to convey the Real Estate Property, subject only to Purchaserthe Permitted Exceptions.
(b) No notice has been received and Seller has good, merchantable and insurable title to no knowledge that the Real Estate, which are free and clear of all mortgages, liens, security interests, charges, claims, restrictions Property or other encumbrances of every kind except as otherwise specifically provided in this Agreement any portion or as portions thereof is or will be discharged at subject to or before the date of Closing. There will be no restriction on the transfer of the Real Estate at the time of Closingaffected by any (i) special assessments, whether or not presently aliened thereon, or (ii) condemnation or similar proceedings.
(c) There Seller is not a party to any actions, suits, or proceedings of any kind or nature whatsoever, legal or equitable, affecting any portion of the Property or relating to or arising out of the ownership of the Property in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality, that there are no such actions, suits or proceedings pending, and that there is no proceeding pending for the reduction of or threatened condemnation or similar proceeding affecting an increase in the Real Estate assessed valuation of the Property or any part portion or portions thereof.
(d) There Seller has no knowledge or notice of any suits, judgments, summonses or proceedings relating to or arising out of any actual or alleged violation or breach of, or any deficiency under, any zoning, building, plumbing, electrical, fire, public hazard, occupational safety, pollution, environmental protection or waste disposal ordinance, code, law, rule, requirement, or regulation of any entity having jurisdiction over the Property which has not been heretofore corrected or alleviated.
(e) The Property, and the present operation thereof, fully complies with all ordinances, codes, laws, rules, requirements and regulations of every entity having jurisdiction over the Property, and the Improvements conform in all respects to the present zoning classification of the Property, and the operation and maintenance of the Improvements do not violate any provision or provisions of applicable zoning ordinance.
(f) The Property is now and, subject to damage by fire or other peril, will at the Closing be in good operating condition and repair; and materials, supplies and goods now in hand, in the aggregate are adequate for the continued normal operation of the business of Seller with respect to the Property.
(g) Within five (5) days after the Effective Date of this Agreement, Seller shall furnish to Purchaser true, correct and complete copies of all contracts and agreements (collectively the "Service Contracts"), if any exist, now in force with respect to the maintenance and operation of and the providing of utilities and other services to, or for the benefit of, the Property; the Service Contracts constitute all of the contracts, agreements and understandings which are known to Seller to affect or relate to the Property, the operation and maintenance thereof, and the providing of utilities and other services thereto; and neither Seller, nor their agents or employees have knowledge or notice of any default under any Service Contract, or knowledge or notice of any event which but for the passage of time or the giving of notice, or both, would constitute a default under any Service Contract, and the Service Contracts can be terminated upon thirty (30) days notice.
(h) Within five (5) days after the Effective Date of this Agreement, Seller shall furnish to Purchaser true and correct copies of all fire and casualty insurance, hazard insurance, workmen's compensation insurance and public liability insurance affecting or relating to the Property and the activities conducted therein or thereon, and copies of all policies providing insurance benefits to agents or employees of Seller, together with all endorsements to the modifications of the foregoing policies or any of them, the premiums of which have all been paid in full.
(i) A certificate of occupancy for the Improvements has been issued and is in full force and effect, and no change, alteration or improvement has been made to the Improvements which might invalidate that certificate; the Improvements are being used in conformity with such certificate of occupancy and there are no claimsviolations of the terms and conditions thereof; and all of the licenses, actionspermits, suits authorizations and approvals required by all governmental authorities having jurisdiction, and any requisite certificates of the Board of Fire Underwriters, or similar boards of agencies, have been issued for the Improvements and are in full force and effect, and all fees and charges payable with respect thereto have been paid.
(j) All bills for labor, services, materials, and utilities, and all trade accounts, which are in any way connected with or arise from the operation of the Property, are current.
(k) Seller shall maintain all insurance policies referenced in subparagraph (g) above in full force and effect until the Closing Date. The Improvements, and Seller's operation thereof, are in compliance with all applicable policies of insurance and neither Seller nor any agent or employee of Seller, has knowledge or notice of any actual or threatened cancellation of any insurance coverage or of any increase in the rate of premium for the risks now insured against or required to be insured against with respect to the Improvements.
(l) No work has been done upon, or materials delivered to, the Property prior to the date hereof which is not fully paid for, nor does any person, firm or corporation now have, nor shall it have after notice or passage of time, or otherwise, any lien rights with respect to the Property or any part or parcel thereof as a result of services performed on, or materials delivered to, the Property.
(m) No person, firm or other legal entity whatsoever has any right or administrative proceedings, including, without limitation, bankruptcy proceedings, pending option whatsoever to acquire the Property or threatened, against any portion or involving Seller portions thereof or the Real Estate which could affect any interest or interests therein.
(n) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, herein shall not and there are no facts which might result in do not constitute a violation or breach by Seller of any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.
(e) There are no leases provision of any agreement or other contracts instrument to which Seller is a party or to which affect the Real EstateSeller may be subject although not a party, except those which shall be terminated by Seller prior to the Closingnor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.
(fo) Seller is not subject to any charterTo the best of Seller's knowledge, bylawthe Improvements are free and clear of termites, rulefungus, agreement dry rot, beetles, other wood destroying insects, faulty grade levels, cellulose debris and excessive moisture conditions, and on or restriction of any kind or character which would prevent before the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other partyClosing Date.
(gp) All bills for work done or materials furnished by or at To the request best of Seller to or for Seller's knowledge, the improvement Improvements are structurally sound, free from latent and patent defects, situated within the boundaries of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real EstateProperty.
(hq) At To the time best of ClosingSeller's knowledge, the Improvements contain no person or entityasbestos, other than Purchaser, will have any right of possession to any portion of the Real Estateand no asbestos was used in this construction.
(ir) Seller has not received entered into any notice and is contract, agreement or understanding, oral or written, not aware of any Hazardous Substance (as defined herein) contained on or in referred to herein with respect to the Tangible Personal Property, the Improvements, the Real Estate. Seller has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Real EstateProperty, or the generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received any notice of and has no knowledge that any governmental authority or any employee or agent thereof has determined that there is a presence, release, threat of release, placement on or in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, of any Hazardous Substance. Seller has not received notice of and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substanceoperation thereof. Seller shall promptly give Purchaser copies of take, or cause to be taken, all action necessary to cause each representation and warranty herein made to remain true and correct in all respects continuously from the date hereof through the Closing Date, and shall refrain from taking any action or failing to take any action which may cause, or threaten to cause, any such notices which may be received by Seller. For purposes of this paragraph, Hazardous Substance means warranties and representations to become incorrect or untrue at any waste, substance, chemical, material, pollutant or containment defined as "hazardous" or "toxic" in, pursuant to or under the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq.time during such period, or any other lawat the Closing. At the Closing, statuteSeller shall reaffirm all said warranties and representations as of the Closing Date, regulations, or common law theory dealing with environmental mattersto the same extent and effect as if made on and as of the Closing Date.
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Warranties and Representations of Seller. Seller makes the following warranties and representations, which shall be true and correct warrants to Purchaser as of the date of this Agreement and as of the date of Closingfollows:
(a) Seller is lawfully organized and existing agrees to deliver to Purchaser the documents required by Section 3 herein, to the extent in its state of organization and has full power and authority to convey the Real Estate to Purchaser.Seller's possession;
(b) Seller has good, merchantable and insurable title to the Real Estate, which are free and clear of all mortgages, liens, security interests, charges, claims, restrictions or other encumbrances of every kind except as otherwise specifically provided in this Agreement or as The Property will be discharged in substantially the same condition at or before the date of Closing. There will be no restriction on the transfer of the Real Estate at the time of Closing.Closing as of date hereof, normal wear and tear excepted;
(c) There is no pending Seller will not further sell, encumber, convey, assign or threatened condemnation contract to sell, convey, assign, pledge, encumber or similar proceeding affecting the Real Estate lease all or any part thereof.of the Property, nor restrict the use of all or any part of the Property, nor take or cause to be taken any action or conflict with this Agreement at any time between the date of execution of this Agreement and (i) Closing, or (ii) the earlier termination of this Agreement pursuant to its terms, except to the extent related to the McClain headquarters facility expansion;
(d) There are no claimsSeller is not x "xxxxign person" as that term is defined in the I.R.C.ss. 1445(f)(3), actions, suits or other legal or administrative proceedingsnor is the sale of the Property subject to any xxxxxxxxing requirements imposed by the Internal Revenue Code, including, without limitationbut not limited to, bankruptcy proceedings, pending or threatened, against or involving Seller or the Real Estate which could affect the consummation of the transactions contemplated hereby, and there are no facts which might result in any action, suit or similar proceeding. There are no judgments, orders or stipulations against Seller or the Real Estate.Section 1445 thereof;
(e) There are no parties in possession of the Property other than McClain, and there are no leases or affecting the Property other contracts to than thx xxxxx between McClain and Seller which Seller is a party which affect the Real Estate, except those which shall will be terminated by Seller prior to the cancelled as of Closing.;
(fx) Seller is not subject to any charter, bylaw, rule, agreement or restriction of any kind or character which would prevent the consummation of this Agreement and the transactions contemplated hereby. Seller has full power and authority to execute this Agreement and all documents necessary to accomplish the sale contemplated herein, fully perform hereunder and to consummate the transactions contemplated hereby without the consent or joinder of any other party.
(g) All bills for work done or materials furnished by or at the request of Seller to or for the improvement of the Real Estate will have been paid in full, or provision made for payment, such that no lien therefore, whether statutory or common law, may properly be filed or enforced against the Real Estate.
(h) At the time of Closing, no person or entity, other than Purchaser, will have any right of possession to any portion of the Real Estate.
(i) Seller has not received any notice and is not aware of any Hazardous Substance (as defined herein) contained on or in the Real Estate. Seller Xxxxer has not received notice of and is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presencesuits, release, threat of release, placement on or in the Real Estatejudgments, or violations relating to or at the generationProperty of any zoning, transportationbuilding, storagefire, treatmenthealth, pollution, environmental protection, or waste disposal at the Real Estateordinance, of any Hazardous Substance. Seller code, law or regulation which has not received any notice of and has no knowledge that any governmental authority or any employee or agent thereof has determined been heretofore corrected; that there is no suit or judgment presently pending or, to the best knowledge and belief of Seller, threatened which would create a presence, release, threat of release, placement on or lien upon the Property in the Real Estate, or that there has been any generation, transportation, storage, treatment, or disposal at the Real Estate, hands of any Hazardous Substance. Seller has not received notice of Purchaser after Closing; and is not aware of any communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Real Estate, relating in any way to the presence, release, threat of release, placement on or in the Real Estate, or the generation, transportation, storage, treatment, or disposal at the Real Estate of any Hazardous Substance. Seller shall promptly give prompt notice to Purchaser copies of any such notices which may be received by suit or judgment filed, entered or threatened prior to Closing;
(g) There are no service contracts or other contracts affecting the Property that are not terminable at will;
(h) There are no pending or to the best of Seller. For purposes of this paragraph's knowledge, Hazardous Substance means any waste, substance, chemical, material, pollutant no threatened or containment defined as "hazardous" or "toxic" in, pursuant to or under contemplated eminent domain proceedings affecting the Resources Conservation Recovery Act, 42 U.S.C. Section 6901 et. seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq., the Clean Water Act, 33 U.S.C. Section 1251 et. seq., the Clean Air Act, 42 U.S.C. Section 7401 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et. seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., Property or any other lawpart thereof; and Seller shall give prompt notice to Purchaser of any such proceedings which occur or are threatened prior to Closing;
(i) No valid claims, statuterights to offsets or litigation, regulationsactual or threatened, or common law theory dealing to the knowledge of Seller, exist with environmental mattersregard to the Property; and
(j) The foregoing Representations and Warranties shall not merge into the deed and shall survive closing.
Appears in 1 contract
