Seller and Purchaser Clause Samples

Seller and Purchaser. As of the date of this Agreement, each of Purchaser and Seller represents and warrants to each other as to itself as follows: 1. It has full right, power and authority to enter into and perform this Agreement in accordance with all of the terms and provisions hereof, and that the execution and delivery of this Agreement has been duly authorized, and the individuals signing this Agreement on behalf of it are duly authorized to execute this Agreement in the capacity of his or her office, and to obligate and bind the parties, and/or the parties’ subsidiaries and affiliates, in the manner described; 2. The execution and performance of this Agreement will not violate the organizational documents or by-laws or any material contract or other instrument, Requirement of Law or order to which it has been named a party or by which it is bound. The execution and performance of this Agreement does not require the approval or consent of any other Person; 3. There are no material actions, suits or proceedings pending or threatened against either party or its affiliates or subsidiaries which would adversely affect its ability to perform this Agreement; and 4. It or one of its subsidiaries or affiliates owns all right, title and interest in its marks and it or one of its subsidiaries or affiliates has all necessary authority to permit use of its marks as contemplated by this Agreement.

Seller and Purchaser acknowledge and agree that to the extent the annual reconciliation of pass-throughs for the 1998 calendar year are not completed prior to the Closing, Seller, rather than Purchaser, shall have the right and obligation to complete such reconciliations and to collect and retain reimbursements from Tenants or pay reimbursements to Tenants, as applicable.

Seller and Purchaser acknowledge and agree that neither this Agreement nor a memorandum thereof shall be recorded against the Property.

Seller and Purchaser hereby jointly and severally agree to indemnify the Escrow Agent, its officers, directors, partners, employees and agents (each hereinafter referred to as an "INDEMNIFIED PARTY") against, and hold each Indemnified Party harmless from, any and all reasonable and documented out-of-pocket expenses, including, without limitation, reasonable attorneys' fees and court costs, losses, costs, damages and claims, including, but not limited to, costs of investigation, litigation, tax liability (other than taxes payable with respect to fees paid or other income hereunder) suffered or incurred by any Indemnified Party in connection with or arising from or out of this Escrow Agreement, except such acts or omissions as may result from the fraud, willful misconduct or gross negligence of, or material breach of this Escrow Agreement by, such Indemnified Party. IT IS THE EXPRESS INTENT OF EACH OF SELLER AND PURCHASER TO INDEMNIFY EACH OF THE INDEMNIFIED PARTIES FOR, AND HOLD THEM HARMLESS FROM AND AGAINST, SELLER'S OR PURCHASER'S NEGLIGENT ACTS OR OMISSIONS. If any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought from Seller and Purchaser pursuant to this SECTION 10, or an Indemnified Party receives notice from any potential claimant, such Indemnified Party shall, as promptly as practicable after receiving notice thereof, give written notice to Seller and Purchaser of the commencement of such action or proceeding or of the existence of any such claim (any such action, proceeding or notice hereinafter referred to as a "CLAIM") and furnish Seller and Purchaser with copies of any summons or other legal process received by such Indemnified Party and other documents and information in the possession of such Indemnified Party as to the nature and basis of the claim; provided that no failure to give or delay in giving such notice or such documents and information shall relieve Seller or Purchaser from any of their indemnification obligations hereunder except to the extent such obligations could have been reduced or avoided in the absence of such failure or delay. In the event that any Claim shall be brought against any Indemnified Party, Seller and Purchaser will be entitled to participate in the defense of such Claim, and, after written notice from Seller and Purchaser to such Indemnified Party, to jointly assume the defense of such Claim with a single counsel mutually agreed upon and appointed by Seller and Purchaser and...

Seller and Purchaser shall keep each other fully apprised of their discussions with Lender related to this Agreement. The Agreement shall terminate in the event that Consent has not been obtain on or before the date sixty (60) days after the Effective Date, provided, however, that either party hereto shall have the right to extend such termination date for an additional period of sixty (60) days, by notice to the other prior to the expiration of such initial sixty (60) day period (as extended, the "Initial Termination Date"). Further, this Agreement shall not terminate on the Initial Termination Date if Seller elects to extend such date for a period of up to one hundred eighty (180) days (the "Extended Closing Date") in order to obtain the Consent (upon notice given to Purchaser). In the event that Lender refuses in writing to give its Consent by the Extended Closing Date, this Agreement shall terminate unless Seller shall elect to further extend the Closing for up to an additional sixty (60) days (the "Further Extended Closing Date") in order to obtain the Consent. In the event Lender fails to give its Consent prior to the Further Extended Closing Date, the Seller or Purchaser may terminate this Agreement. Upon the termination of this Agreement, as set forth in this Section 3(d), the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser, and the parties hereto shall have no further rights, duties, obligations or liabilities to one another hereunder except for the Surviving Obligations.

Seller and Purchaser agree to keep, and to cause each of their affiliates, directors, officers, and employees to keep, confidential any and all confidential information of the other party that either receives in the course of performing its obligations hereunder (except that such information may be shared, on a confidential basis, with the party's attorneys and auditors) and will not, without the other party's written consent, use any of such confidential information except as reasonably necessary to perform its duties under this or another of its agreements with the other party. Upon termination of this Agreement, each party will return, and will cause its affiliates to return, to the other party, all original documents and copies of the confidential information which are in its possession.

Seller and Purchaser. (a) reaffirm their obligations under the Asset Purchase Agreement; and (b) confirm that their obligations remain in full force and effect with respect to the Asset Purchase Agreement; in each case after giving effect to the amendments provided for herein.

Seller and Purchaser may establish a joint program to finalize the field tests already established and currently in course, according to Schedule 14.7.1, and according to definitions, budgeting and results to be determined and shared by both SELLER and PURCHASER. PURCHASER and SELLER shall not sell, exchange, distribute, donate, give away, discard or dispose in any matter any functional, healthy, replicable proprietary clones or the results of the joint program without the other Party’s prior written consent.

Seller and Purchaser each acknowledges and agrees that the original intent of the parties as evidenced in the Agreement of Sale was to consummate the transactions contemplated in the Agreement of Sale with respect to the Oakton Property and the Towngate Property on a joint contemporaneous basis. Seller and Purchaser now have agreed that the transaction contemplated in the Agreement of Sale with respect to the Oakton Property and the transaction contemplated in the Agreement of Sale with respect to the Towngate Property shall be consummated separately subject to and in accordance with the terms and provisions of the Agreement of Sale applicable to each of the Oakton Property and the Towngate Property. Seller and Purchaser each confirms and agrees that all of the terms and provisions of the Agreement of Sale shall be interpreted so as to effectuate the foregoing intent and agreement of the parties to the fullest extent possible. In furtherance and not in limitation of the foregoing, Seller and Purchaser each specifically agrees (a) that occurrence of the "Oakton Closing" (as hereinafter defined) and the "Towngate Closing" (as hereinafter defined) shall not in any manner be related to or conditioned upon the occurrence of the other Closing; (b) that Purchaser, by consummating the Oakton Closing, shall not thereby have any obligation to consummate the Towngate Closing; and (c) that in the event Purchaser exercises its right under Section 12(b) of the Agreement of Sale to terminate the Agreement of Sale with respect to the Oakton Property on or before the Oakton Study Period Termination Date, then Seller shall have the right to terminate the Agreement of Sale with respect to the Towngate Property by delivering written notice of such termination within three business days of Seller's receipt of Purchaser's termination notice under Section 12(b), in which event the Towngate Deposit and all accrued interest thereon shall be refunded to Purchaser, and no party shall have any further rights, liabilities, or obligations in connection with the Agreement of Sale with respect to the Towngate Property, except for those which may arise under Section 12(c) of the Agreement of Sale with respect to the Towngate Property. All references in the Agreement of Sale to "Properties" shall be deemed to mean and refer to each of the Oakton Property and the Towngate Property, as may be applicable and as the context may require.