Common use of Warranties and Representations of Seller Clause in Contracts

Warranties and Representations of Seller. Seller represents and warrants to Buyer as follows: 17.1 Seller is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Tennessee and has qualified to do business and is in good standing in each state where a hotel property is located, and has full power and authority to carry on its current business and to own, use and sell its assets and properties. 17.2 Seller has full power and authority and all necessary approvals to enter into this Agreement. The execution and delivery of this Agreement and the transactions contemplated hereby do not and will not violate any provision of any agreement, document, or instrument to which Seller is a party or by which Seller is bound, except as otherwise noted in this Agreement. Seller has made no other agreements with any other party with respect to the Purchased Assets which would adversely affect the transactions contemplated hereby. 17.3 There is as of the date hereof no litigation, proceeding, suit, action, controversy, or claim existing, pending, or, to the best of Seller's knowledge, threatened against Seller which might materially, adversely affect the transfer of the Purchased Assets to Buyer. At Closing, Seller will have complied with all laws, regulations, and ordinances applicable to the transfer of the Purchased Assets. There are at the date hereof and at Closing there will be no judgments existing, whether or not filed, against Seller or Seller's Tenant which might affect the Purchased Assets, except as herein set forth. 17.4 Seller has received no written notices of any violations of any laws, ordinances, regulations, rules or orders issued by any federal, state, or local governmental authority adversely affecting the Premises, except as noted in this Agreement. 17.5 To Seller's knowledge, there are no options to purchase, rights of first refusal or other similar agreements with respect to the Premises which give anyone the right to purchase the Premises or any part thereof. Neither Seller nor to the knowledge of Seller, Seller's Tenant is a party to any contracts, leases, or agreements, written or oral, including without limitation sales representation contracts, purchase contracts or restrictive agreements which prohibit the consummation of this Agreement, except as reflected in the preliminary title report and Schedule C attached hereto. 17.6 There are as of the date hereof no taxes outstanding against the Purchased Assets, other than those for which adjustment in the Purchase Price are to be made. For purposes of this paragraph, taxes shall include any and all business-related taxes, including, but not limited to, sales tax, employee income tax and F.I.C.A. withholding, employment taxes, and business or license fees. 17.7 Seller is not a foreign entity, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax regulations). 17.8 To Seller's knowledge, Seller has filed all federal, estate, county and local tax returns required to be filed by Seller and has paid all taxes, interest and penalties that have become due and payable by Seller. To Seller's knowledge, there is no tax deficiency or penalty owing with respect to Seller. 17.9 The Seller has no knowledge of, nor has it received any written notice of, any special taxes or assessments relating to any hotel property or any part thereof or any planned public improvements that may result in a special tax or assessment against any hotel property which is not of public record. 17.10 Each hotel property contains, as of the Closing Date, not less than: 17.10.1 A sufficient amount of furniture, furnishings, color television sets, carpets, drapes, rugs, floor coverings, mattresses, pillows, bedspreads and the like, to furnish each guest room, so that each such guest room is, in fact, fully furnished in accordance with current Franchisor standards at the time of Seller's purchase; and 17.10.2 A sufficient amount of towels, washcloths and bed linens, together with a sufficient supply of paper goods, soaps, cleaning supplies and other such supplies and materials, as are reasonably adequate for the current operations of the Hotel in accordance with current Franchisor standards at the time of Seller's purchase. 17.11 The Seller has not received written notice that any Contract is in default.

Warranties and Representations of Seller. Seller represents makes the following warranties and warrants to Buyer representations, which shall be true and correct as followsof the date of this Agreement and as of the date of Closing: 17.1 (a) Seller is a limited partnership duly organized, validly lawfully organized and existing and municipal corporation in good standing under the laws state of the State of Tennessee and has qualified to do business and is in good standing in each state where a hotel property is located, Illinois and has full power and authority to carry on its current business and convey the Real Estate to own, use and sell its assets and propertiesPurchaser. 17.2 (b) Seller has full power good, merchantable and authority insurable title to the Real Estate, which are free and clear of all necessary approvals 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 enter which Seller is a party which affect the Real Estate, except those which shall be terminated by Seller prior to the Closing. Seller has not entered into this Agreement. The execution and delivery any purchase contracts, rights of refusal, options or other agreements of any kind whereby any person or entity other than Seller has acquired any right, title or interest in, or right to possession, use, enjoyment or proceeds of all or any portion of the Real Estate. (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 do not and will not violate any provision of any agreement, document, or instrument to which Seller is a party or by which Seller is bound, except as otherwise noted in this Agreementhereby. 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 other party with respect to the Purchased Assets which would adversely affect the transactions contemplated hereby. 17.3 There is as of the date hereof no litigation, proceeding, suit, action, controversy, governmental authority or claim existing, pending, or, to the best of Seller's knowledge, threatened against Seller which might materially, adversely affect the transfer of the Purchased Assets to Buyer. At Closing, Seller will have complied with all laws, regulations, and ordinances applicable to the transfer of the Purchased Assets. There are at the date hereof and at Closing there will be no judgments existing, whether or not filed, against Seller or Seller's Tenant which might affect the Purchased Assets, except as herein set forth. 17.4 Seller has received no written notices of any violations of any laws, ordinances, regulations, rules or orders issued by any agency (federal, state, state or local governmental authority adversely affecting the Premises, except as noted in this Agreement. 17.5 To Seller's knowledge, there are no options to purchase, rights of first refusal or other similar agreements with respect to the Premises which give anyone the right to purchase the Premises local) or any part thereof. Neither Seller nor to the knowledge of Seller, Seller's Tenant is a party to any contracts, leases, or agreements, written or oral, including without limitation sales representation contracts, purchase contracts or restrictive agreements which prohibit the consummation of this Agreement, except as reflected in the preliminary title report and Schedule C attached hereto. 17.6 There are as of the date hereof no taxes outstanding against the Purchased Assets, other than those for which adjustment in the Purchase Price are to be made. For purposes of this paragraph, taxes shall include any and all business-related taxesprivate entity, including, but not limited to, sales taxany prior owners of the Real Estate, employee income tax 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 F.I.C.A. withholdingLiability Act, employment taxes42 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 business 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 license feesany other law, statute, regulations, or common law theory dealing with environmental matters. 17.7 (j) Seller is not a foreign entity, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax regulations). 17.8 To Seller's knowledge, Seller has filed all default under any applicable federal, estatestate or local laws, county and local tax returns required to be filed by Seller and has paid all taxesstatutes, interest and penalties that ordinances, permits, licenses, orders, approvals, variances, rules or regulations or judicial or administrative decisions which would have become due and payable by Selleran adverse effect upon the Real Estate. To Seller's knowledgeNo notices or citations for the violation of any zoning, there is no tax deficiency building or penalty owing with respect to Seller. 17.9 The Seller has no knowledge ofother law, nor has it received ordinance, regulation or directive of any written notice of, any special taxes governmental authority or assessments authorities having jurisdiction relating to any hotel property the Real Estate or any part thereof or any planned public improvements that may result in a special tax parts thereof, have been received, or assessment against any hotel property which is not of public recordare known by, Seller. 17.10 Each hotel property contains, as of the Closing Date, not less than: 17.10.1 A sufficient amount of furniture, furnishings, color television sets, carpets, drapes, rugs, floor coverings, mattresses, pillows, bedspreads and the like, to furnish each guest room, so that each such guest room is, in fact, fully furnished in accordance with current Franchisor standards at the time of Seller's purchase; and 17.10.2 A sufficient amount of towels, washcloths and bed linens, together with a sufficient supply of paper goods, soaps, cleaning supplies and other such supplies and materials, as are reasonably adequate for the current operations of the Hotel in accordance with current Franchisor standards at the time of Seller's purchase. 17.11 The Seller has not received written notice that any Contract is in default.

Warranties and Representations of Seller. Seller represents and warrants to and agrees with Buyer as follows: 17.1 (a) This Agreement and all other agreements, documents and instruments executed by Seller pursuant hereto are and will be valid and bindings obligations of Seller, enforceable in accordance with their terms, as well as the execution, delivery and performance of this Agreement, and such other agreements, documents and instruments as are necessary for the performance of the transactions contemplated hereunder, all subject to approval of the bankruptcy court. (b) Seller is a limited partnership duly organizedthe lawful owner of and has, validly existing and in good standing under the laws will transfer to Buyer at Closing, good, clear and marketable title to, all of the State Seller's Designated Assets, free and clear of Tennessee all liens; encumbrances, security interests or charges of every kind, nature and has qualified description; subject to do business approval of the bankruptcy court. (c) Aside from the stated bankruptcy proceedings, there is no suit, action or legal, administrative, arbitration, or other proceeding of any nature pending, or to the knowledge of Seller threatened, against Seller or its property which affects in any material respect the Seller's Business or Seller's Assets, or which might materially and is in good standing in each state where a hotel property is locatedadversely affect the legality or validity of this Agreement, or the transactions contemplated hereby, and has full power and authority there is not any factual basis known to carry on its current business and to ownSeller for any such suit, use and sell its assets and propertiesaction or proceeding. 17.2 (d) The Seller has full power and authority and all necessary approvals is currently involved in a labor group for collective bargaining purposes. Buyer shall not assume any union contracts nor shall be required to enter into this Agreement. The hire any of the Seller's current employees. (e) Following the anticipated approval of the bankruptcy court, the execution and delivery of this Agreement and the performance of the transactions contemplated hereby do not not, and will not, constitute a violation of, and are not, and will not violate any provision be, a default under or conflict with terms of any contract, lease, indenture, agreement, documentorder, judgment or instrument decree to which Seller is a party or by which Seller it is bound, except as otherwise noted in this Agreement. Seller has made no other agreements with bound or to which any other party with respect to the Purchased Assets which would adversely affect the transactions contemplated hereby. 17.3 There is as of the date hereof no litigationSeller Assets are subject, proceedingand do not, suit, action, controversy, or claim existing, pending, orand, to the best of Seller's knowledgeknowledge will not, threatened against violate or constitute a default under any statute, rule, regulation, order or ordinance of any governmental, judicial or arbitral body. (f) The Seller which might materiallyAssets described herein, adversely affect the transfer of the Purchased Assets to Buyer. At Closing, Seller will have complied with all laws, regulations, and ordinances applicable to the transfer of the Purchased Assets. There are at between the date hereof and at the Closing, shall not be leased, pledged, encumbered or disposed of by Seller without the prior written consent of Buyer. (g) Seller has and will until the Closing there have complied in all material respects with all applicable laws, rules and regulations relating to the employment of labor, including those relating to wages, hours, collective bargaining, and discrimination, and will pay or provide for all Social Security and other taxes. (h) All federal, state and local or municipal taxes attributable to the Seller's Business and/or the ownership, use or possession of the Seller Assets, have been fully paid or will be no judgments existing, whether or not fully paid by Seller. Seller has timely filed, against Seller or Seller's Tenant which might affect the Purchased Assets, except as herein set forth. 17.4 Seller has received no written notices of any violations of any laws, ordinances, regulations, rules or orders issued by any federal, state, or local governmental authority adversely affecting the Premises, except as noted in this Agreement. 17.5 To Seller's knowledge, there are no options to purchase, rights of first refusal or other similar agreements with respect to the Premises which give anyone the right to purchase the Premises or any part thereof. Neither Seller nor to the knowledge of Seller, Seller's Tenant is a party to any contracts, leases, or agreements, written or oral, including without limitation sales representation contracts, purchase contracts or restrictive agreements which prohibit the consummation of this Agreement, except as reflected in the preliminary title report and Schedule C attached hereto. 17.6 There are as of the date hereof no taxes outstanding against the Purchased Assets, other than those for which adjustment in the Purchase Price are caused to be made. For purposes of this paragraphtimely filed and will in a timely fashion following Closing files, taxes shall include any and with appropriate governmental agencies all business-related taxes, including, but not limited to, sales tax, employee income tax and F.I.C.A. withholding, employment taxes, and business or license fees. 17.7 Seller is not a foreign entity, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax regulations). 17.8 To Seller's knowledge, Seller has filed all federal, estate, county and local tax returns required to be filed by Seller with such agencies and has paid all taxes, interest assessments, fees and penalties that other governmental charges shown to be due thereon have become due and payable by Seller. To Seller's knowledgebeen paid, there is no tax deficiency or penalty owing with respect to Sellerwill be paid in the case of filing after Closing. 17.9 The Seller has no knowledge of, nor has it received any written notice of, any special taxes or assessments relating to any hotel property or any part thereof or any planned public improvements that may result in a special tax or assessment against any hotel property which is not of public record. 17.10 Each hotel property contains, as (i) That this requires the approval of the Closing Date, not less than: 17.10.1 A sufficient amount of furniture, furnishings, color television sets, carpets, drapes, rugs, floor coverings, mattresses, pillows, bedspreads and the like, to furnish each guest room, so that each such guest room is, in fact, fully furnished in accordance with current Franchisor standards at the time of Seller's purchase; and 17.10.2 A sufficient amount of towels, washcloths and bed linens, together with a sufficient supply of paper goods, soaps, cleaning supplies and other such supplies and materials, as are reasonably adequate United States Bankruptcy Court for the current operations Northern District of the Hotel in accordance with current Franchisor standards at the time of Seller's purchaseIowa. 17.11 The Seller has not received written notice that any Contract is in default.