Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date that: (a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder. (b) This Agreement has been duly authorized, executed and delivered by such Seller. (c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement. (d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement. (e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 5 contracts
Sources: Opco LLC Interests Redemption Agreement (Forgent Power Solutions, Inc.), Opco LLC Interests Redemption Agreement (Forgent Power Solutions, Inc.), Opco LLC Interests Redemption Agreement (Forgent Power Solutions, Inc.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
6.1.1 Such Seller is duly organized, validly existing and in good standing under the laws of the state of its formation set forth on the Seller Information Schedule; and (ax) All consentssubject to Section 8.2.4, approvals(y) subject any approvals required from a Lender for a Loan Assumption and Release with respect to any Assumption Property and, authorizations any Lender consents required for the making of the AIMCO Loans and orders necessary (z) subject to receipt of the HUD Approval and the DHCR Approval for the transfer of the Chimneys of Cradlerock Property, has or at the Closing shall have the entity power and authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or default would have a material adverse affect on such Seller’s ability to which consummate the transaction contemplated by this Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid and binding and enforceable agreement against such Seller in accordance with its terms;
6.1.2 Other than the Leases, such Seller's Property is not subject to any written lease executed by such Seller or, to such Seller's knowledge, any other possessory interests of any person;
6.1.3 Such Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except as set forth on the Seller Information Schedule and for any actions by such Seller to evict Tenants under its Leases, to such Seller’s knowledge, there are no actions, proceedings, litigation (including bankruptcy) or governmental investigations or condemnation actions either pending or threatened against such Seller’s Property;
6.1.5 To such Seller’s knowledge, such Seller has not received any written notice of any material default by such Seller under any of its Property Contracts that will not be terminated on the property or assets of Closing Date;
6.1.6 To such Seller's knowledge, such Seller is subjecthas not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting such Seller's Property;
6.1.7 To such Seller's knowledge: (a) no hazardous or toxic materials or other substances regulated by applicable federal or state environmental laws are stored by such Seller on, in or under its Property in quantities which violate applicable laws governing such materials or substances, (iib) violate such Seller's Property is not used by such Seller for the storage, treatment, generation or manufacture of any provision hazardous or toxic materials or other substances in a manner which would constitute a violation of organizational documents applicable federal or state environmental laws, (c) such Seller has not received, within one (1) year prior to the Effective Date, written notice of water damage at its Property resulting in suspected fungal growth that has not been remediated pursuant to such Seller's normal operating procedures, and (d) such Seller has not, within one (1) year prior to the Effective Date, received written notice of a hazardous substance condition at its Property or received a written order from a governmental authority regarding a hazardous substance condition at its Property;
6.1.8 Such Seller has not intentionally misstated or misrepresented any information prepared by it and contained in the Materials delivered pursuant to Section 3.5.1;
6.1.9 To such Seller's knowledge, the factual documentation of current operating and financial results prepared by the applicable Seller (but not Seller Third-Party Reports) concerning the applicable Property and disclosed to Purchaser hereunder has been prepared in such Seller's ordinary course of business and is substantially identical with the information relied on by such Seller in the current ownership, operation and reporting of the applicable Property by such Seller; provided, however, Seller has not provided, and is under no obligation to provide, internal evaluations or similar internal analysis (as compared with the results themselves);
6.1.10 To such Seller’s knowledge, the applicable Rent Roll (as updated pursuant to Section 5.2.14) is accurate in all material respects. Prior to the expiration of the Feasibility Period, at Purchaser’s request, each Seller shall provide Purchaser with a current Rent Roll and such updated Rent Roll shall, to the knowledge of such Seller, if applicable or (iii) violate any applicable statute or any orderbe accurate in all material respects; and
6.1.11 To such Seller’s knowledge, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests Property Contracts List (as updated pursuant to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of Section 5.2.15) is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 5 contracts
Sources: Purchase and Sale Contract, Purchase and Sale Contract (Century Properties Fund Xvi), Purchase and Sale Contract (Shelter Properties Ii LTD Partnership)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing or caused by Purchaser, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser’s remedies if any of such Seller’s Representations are untrue as of the Closing Date that:are limited to those set forth in Section 11.2):
(a) All consents7.1.1. Organization . Such Seller is organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth on the Seller Information Schedule and has or at the Closing Date shall have the entity power and authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, authorizations and orders necessary all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationAgreement, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Agreement. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on such Seller’s ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions transaction contemplated by this Agreement or on the Property. This Agreement is a valid, binding and enforceable agreement against such Seller in accordance with its terms;
7.1.2. Leases . Other than the Leases, such Seller’s Property is not subject to any written lease executed by such Seller or, to such Seller’s knowledge, any other possessory interests of any person. To such Seller’s knowledge, (a) the Leases applicable to such Seller’s property are in full force and effect according to the terms set forth therein, and (b) such Leases set forth the entire agreement between such Seller, as landlord, and the Tenant with respect to the premises affected thereby. To such Seller’s knowledge, except as noted in the Rent Roll, there are no outstanding Tenant defaults in their payment of Rents. To such Seller’s knowledge, except as set forth on the Rent Roll, each such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon received, nor given, any express or implied representations or warranties outstanding notice of any nature made by breaches or on behalf of defaults under the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.Leases;
Appears in 5 contracts
Sources: Purchase and Sale Agreement (Shelter Properties Vi Limited Partnership), Purchase and Sale Agreement (Shelter Properties Vii LTD Partnership), Purchase and Sale Agreement (Davidson Diversified Real Estate Ii Limited Partnership)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally Seller warrants and not jointly, represents and warrants to the Company and Opco Buyer as of the Initial Closing Date and each Option Closing Date thatfollows:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such 4.1.1 Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or is a limited liability company validly formed in the aggregate, have a material adverse effect on the ability State of such Seller to consummate the transactions contemplated by this Agreement; and such Delaware. Seller has full right, power and authority to enter into this Agreement, to perform this Agreement and to sellconsummate the transactions contemplated hereby. The execution, assign, transfer delivery and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions performance of this Agreement and all documents contemplated hereby by Seller have been duly and validly authorized by all necessary action on the consummation part of the transactions contemplated herein Seller, and all required consents and approvals have been duly obtained and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, under any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or and/or instrument to which such Seller is a party party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Seller has good and marketable title to the Property. There are no outstanding rights of first refusal, rights of reverter or options to purchase relating to the Property or any interest therein. To the best of Seller’s knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. Subject to the Lease, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by which such any person.
4.1.3 Seller is bound or to which not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.4 Neither Seller nor any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted from doing business under regulations of the property Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or assets under any statute, executive order (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action, and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
4.1.5 No authorization, consent or approval of such any governmental authority (including, without limitation, courts) is required for the execution and delivery by Seller is subjectof this Agreement or the performance of its obligations hereunder.
4.1.6 There are no actions, suits or proceedings pending or, to the best of Seller’s knowledge, threatened, against (a) the Property or any portion thereof; or (b) Seller.
4.1.7 Seller has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by Seller's creditors, (c) suffered the appointment of a receiver to take possession of all or substantially all of Seller's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets, (e) admitted in writing its inability to pay its debts as they come due, or (f) made an offer of settlement, extension or composition to its creditors generally.
4.1.8 Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (i) the articles of incorporation and by-laws or other organization certificate and/or partnership or operating agreement of Seller, or (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute law or any order, rule writ, injunction or regulation decree of any court or governmental authority, or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
4.1.9 Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property.
4.1.10 There is no pending or, to the best of Seller’s knowledge, threatened or contemplated, condemnation proceeding relating to the Property, and Seller has not received any written notice from any governmental or quasi-governmental agency or body having jurisdiction over official to the effect that any such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementproceeding is contemplated.
(d) Immediately prior 4.1.11 Seller has delivered to Buyer true and complete copies of the Property Contracts, and, to the delivery best of Seller’s knowledge, any and all other contracts, agreements, documents, reports, materials and information that are in Seller’s possession or cancellationcontrol with respect to the ownership, as the case may be, use and/or operation of the applicable Redeemed Opco LLC Interests to Opco at Property. Seller has not, within the Initial Closing last year, received any written notice of any default under any Property Contract or Option Closingother such contract or agreement that has not been cured or waived.
4.1.12 There are no tenant improvement allowances, as applicablenon-monetary tenant improvement obligations of Landlord, such Seller holds and will hold valid title leasing commissions and/or rent concessions with respect to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents current term of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orallyLease, except as expressly set forth for disclosed on Schedule 4.1.12 attached hereto.
4.1.13 Seller has not received any written notice from, and to the benefit best of Seller’s knowledge, there are no grounds for, any governmental agency requiring the Sellers in this Agreementcorrection of any condition with respect to the Property.
Appears in 4 contracts
Sources: Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Representations. In connection with the transactions contemplated hereby, each Each of the Sellers, severally individuals and not jointly, represents and warrants entities comprising Seller represent to the Company and Opco as of the Initial Closing Date and each Option Closing Date Buyer that:
(a) All consents, approvals, authorizations Each (other than natural persons) is a legal entity duly organized and orders necessary for legally existing under the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, laws of the applicable Redeemed Opco LLC Interests State of Texas. Each corporation and limited partnership is qualified to do business in Wyoming and is in good standing, or will be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller at Closing.
(b) Each has full right, power and authority to enter into this Agreement and perform its obligations hereunder and has taken all necessary action to sell, assign, transfer enter into this Agreement and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder Execution and the compliance by such Seller with all of the provisions delivery of this Agreement and Agreement, the consummation of the transactions transaction contemplated herein hereby, and compliance with the terms hereof, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, under any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller Seller, or any individual party thereof, is a party or by which such Seller is the Properties are bound that would be material to this transaction. Execution and delivery of this Agreement will not violate any contractual provision, order, writ, injunction, decree, statute, rule, or regulation applicable to Seller, or any individual party thereof, or to which any the Properties that would be material to this transaction, except the following:
(i) Any waivers of the property or assets of such Seller is subject, preferential rights to purchase that must be obtained from third parties;
(ii) violate any provision Compliance with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of organizational documents of such Seller, if applicable or ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"); and,
(iii) violate any applicable statute or any order, rule or regulation of any court or Any approvals that must be obtained from governmental agency or body having jurisdiction over such Seller or any of its properties; except, entities who are lessors under leases included in the case of clauses Properties (i), (iior who administer such leases for such lessors) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementthat are customarily obtained post-closing.
(d) Immediately prior This Agreement and the Assignment and ▇▇▇▇ of Sale provided for in Section 14.(a)(i) hereof and any other documentation provided for herein to be executed by Seller, will, when executed and delivered, constitute the delivery or cancellationlegal, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interestsvalid, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear binding obligations of all liensSeller, encumbrances, equities or claimsenforceable according to their terms, except for any encumbrances (i) imposed under as limited by bankruptcy or other laws applicable securities laws or the organizational documents of the Company or Opco or (ii) generally to creditor's rights and as would not reasonably be expected tolimited by general, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementequitable principles.
(e) Such Except as disclosed on Exhibit D, there are no pending suits, actions, or other proceedings in which Seller is a party that materially affect the Properties (either individually including, without limitation, any actions challenging or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks pertaining to Seller's title to any of the transactions contemplated by Properties) or affect the execution and delivery of this Agreement. Such Seller has had Agreement or the opportunity to ask questions and receive answers concerning the terms and conditions consummation of the transactions transaction contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementhereby.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Continental Crude Co), Purchase and Sale Agreement (Continental Resources Inc), Purchase and Sale Agreement (Continental Resources Inc)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller the Sellers of this Agreement and for the redemption sale and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests Repurchase Shares to be sold or cancelled by such Seller the Sellers hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has the Sellers have full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests Repurchase Shares to be redeemed or cancelled sold by such Seller the Sellers hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Sellereach of the Sellers.
(c) The redemption sale of the applicable Redeemed Opco LLC Interests of such Seller Repurchase Shares to be sold by the Sellers hereunder and the compliance by such Seller the Sellers with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material statute, indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, or (ii) violate result in any provision violation of the provisions of any (x) organizational or similar documents of such Seller, if applicable pursuant to which the Sellers were formed or (iiiy) violate any applicable statute or any applicable order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller the Sellers or any the property of its propertiesthe Sellers; except, except in the case of clauses clause (i) or clause (ii)(y), (ii) and (iii)for such conflicts, breaches, violations or defaults as would not reasonably be expected to, individually impair in any material respect the consummation of the Sellers’ obligations hereunder or in the aggregate, would not have a material adverse effect Material Adverse Effect upon the ability of such Seller to consummate the transactions contemplated by this AgreementSellers.
(d) Immediately As of the date hereof and immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests Repurchase Shares to Opco the Company at the Initial Closing or Option Closing, as applicable, such Seller holds the Sellers hold and will hold valid title to the applicable Redeemed Opco LLC InterestsRepurchase Shares, and holds hold and will hold such applicable Redeemed Opco LLC Interests Repurchase Shares free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller The Sellers (either individually or each together with its their advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this AgreementRepurchase. Such Seller has The Sellers have had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement Repurchase as such Seller has they have requested. Such Seller has The Sellers have received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this AgreementRepurchase. Such Seller acknowledges The Sellers acknowledge that it has the Sellers have not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or OpcoCompany, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 3 contracts
Sources: Stock Repurchase Agreement (INC Research Holdings, Inc.), Stock Repurchase Agreement (INC Research Holdings, Inc.), Stock Repurchase Agreement (INC Research Holdings, Inc.)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption sale and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests Repurchase Shares to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has have full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests Repurchase Shares to be redeemed or cancelled sold by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption sale of the applicable Redeemed Opco LLC Interests of Repurchase Shares to be sold by such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material statute, indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, or (ii) violate result in any provision violation of the provisions of any (x) organizational or similar documents of pursuant to which such Seller, if applicable Seller was formed or (iiiy) violate any applicable statute or any applicable order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any the property of its propertiessuch Seller; except, except in the case of clauses clause (i) or clause (ii)(y), (ii) and (iii)for such conflicts, breaches, violations or defaults as would not reasonably be expected to, individually or impair in any material respect the aggregate, have a material adverse effect the ability consummation of such Seller to consummate the transactions contemplated by this AgreementSeller’s obligations hereunder.
(d) Immediately As of the date hereof and immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests Repurchase Shares to Opco the Company at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC InterestsRepurchase Shares, and holds hold and will hold such applicable Redeemed Opco LLC Interests Repurchase Shares free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has have such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this AgreementRepurchase. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement Repurchase as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this AgreementRepurchase. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or OpcoCompany, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 3 contracts
Sources: Stock Repurchase Agreement (Syneos Health, Inc.), Stock Repurchase Agreement (Syneos Health, Inc.), Stock Repurchase Agreement (Syneos Health, Inc.)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, 1.1 The seller represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Purchaser that:
(a) All consentsThe Seller is the registered and beneficial owner of the Claims and holds the right to transfer title to the Claims and to explore and develop the Claims;
(b) The Seller holds the Claims free and clear of all liens, approvalscharges and claims of others, authorizations and orders necessary the Seller has a free and unimpeded right of access to the Claims and has use of the Claims surface for herein purposes;
(c) The Claims have been duly and validly located and recorded in a good and miner-like manner pursuant to the execution laws of the Province of British Columbia and delivery by such Seller are in good standing in British Columbia as of the date of this Agreement and for Agreement;
(d) There are no adverse claims or challenges against or to the redemption and delivery Seller’s ownership of or cancellation, as the case may be, title to any of the applicable Redeemed Opco LLC Interests Claims nor to be sold the knowledge of the Seller is there any basis therefore and there are no outstanding agreements or cancelled by such Seller hereunder, have been obtained, except where options to acquire or purchase the failure to obtain Claims or any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such portion thereof;
(e) The Seller has the full right, power authority and authority capacity to enter into this Agreement and to sell, assign, transfer and deliver without first obtaining the consent of any other person or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and corporate body in the consummation of the transactions transaction herein contemplated herein will not (i) conflict with or result in a any breach or violation of any of the terms covenants or provisions ofagreements contained in, or constitute a default under, or result in the creation of any material encumbrance under the provisions of any indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument whatsoever to which such the Seller is a party or by which such Seller he is bound or to which any of he is subject; and
(f) No proceedings are pending for, and the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation unaware of any court or governmental agency or body having jurisdiction over such basis for, the institution of any proceedings which could lead to the placing of either Seller or any of its properties; exceptin bankruptcy, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller any position similar to consummate the transactions contemplated by this Agreementbankruptcy.
(dg) Immediately prior The Seller agrees to hold all claims covered by this agreement “in trust” indefinitely in order to comply with the delivery or cancellation, as the case may be, laws of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing Province of British Columbia or Option Closing, until such time as applicable, such Seller holds Purchaser has made other arrangements.
1.2 The representations and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents warranties of the Company or Opco or (ii) as would not reasonably be expected to, individually or Seller set out in paragraph 1.1 above form a part of this Agreement and are conditions upon which the Purchaser has relied in entering this Agreement and shall survive the acquisition of any interest in the aggregate, have a material adverse effect Claims by the ability of such Seller to consummate the transactions contemplated by this AgreementPurchaser.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 3 contracts
Sources: Property Acquisition Agreement (Duke Mountain Resources, Inc), Property Acquisition Agreement (Duke Mountain Resources, Inc), Property Acquisition Agreement (Duke Mountain Resources, Inc)
Seller’s Representations. In connection with Each of the transactions contemplated hereby, Sellers (who make the following representations only to the extent of the interests owned by each of the SellersSellers in the Leases) represents, severally warrants and not jointly, represents agrees to and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date with Buyer that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, As of the applicable Redeemed Opco LLC Interests Closing, the Issued Leases are in full force and effect, and Seller has or will have as of the Closing fully complied with all of the terms and provisions thereof which it is obligated to perform for all periods up to the Closing. Sellers shall own or otherwise have the right to assign and convey or cause to be sold or cancelled by such Seller hereunderassigned and conveyed the Issued Leases, have been obtainedall of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Sellers of not less than eighty three and one third percent (83.33%), except where the failure prior to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability reservation of such Seller an overriding royalty equal to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, four percent (4%) of 8/8ths as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunderprovided for herein.
(b) This Agreement has been duly authorizedAt such time as the Un-issued Leases are issued, executed Sellers shall own or otherwise have the right to assign and delivered by such Sellerconvey or cause to be assigned and conveyed the Un-issued Leases, all of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Sellers of not less than eighty three and one third percent (83.33%), prior to reservation of an overriding royalty equal to four percent (4%) of 8/8ths as provided for herein.
(c) The redemption There is no litigation or governmental investigation or proceeding pending or, to the knowledge of the applicable Redeemed Opco LLC Interests Sellers, threatened affecting the Leases or which would have the effect of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with restraining or result in a breach or violation of prohibiting any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior This Agreement constitutes the valid and binding agreement of Sellers in accordance with its terms, and all instruments required hereunder to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco be executed by Sellers at the Initial Closing or Option Closingshall constitute valid and binding agreements of Sellers in accordance with their terms. The execution, as applicable, such Seller holds delivery and will hold valid title to the applicable Redeemed Opco LLC Interests, performance of this Agreement and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated hereby have been duly and validly authorized by this Agreement.all requisite action on the part of Sellers;
(e) Such Seller This Agreement has been duly executed and delivered by Sellers and all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and delivered by Seller;
(either individually f) Sellers have incurred no liability, contingent or each together otherwise, for brokers' or finders' fees in respect of this transaction for which Buyer shall have any responsibility whatsoever;
(g) Sellers shall not enter into any new agreements or commitments or incur, or agree to incur, any contractual obligation or liability (absolute or contingent) affecting or relating to any of the Leases which extend beyond the Closing except in connection with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks consummation of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement, without the written consent of Buyer; and
(h) Sellers have relied upon their own independent investigation made by each of them and their respective representatives, if any, and have made such investigation of the Leases as deemed appropriate under the circumstances. No Seller has been given any oral or written representations or assurances from any other Seller or the Buyer other than as set forth herein.
Appears in 2 contracts
Sources: Purchase Agreement (Polar Petroleum Corp.), Purchase Agreement (Polar Petroleum Corp.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, authorizations subject to Section 8.2.4, has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller’s knowledge, any other possessory interests of any person;
6.1.3 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.5 To Seller’s knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.6 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.7 To the knowledge of Seller, the Rent Roll (das updated pursuant to Section 5.2.10) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Contract (Consolidated Capital Growth Fund), Purchase and Sale Contract (Consolidated Capital Institutional Properties)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller represents and warrants to Purchaser the Company and Opco following (collectively, “Seller’s Representations”) as of the Initial Closing Effective Date and each Option as of the Closing Date thatDate, provided that certain of Seller’s Representations may be modified as a result of changes in facts or circumstances after the date hereof, which shall not be deemed to cause a breach of any of Seller’s Representations unless Seller causes such changed facts or circumstances in violation of the terms of this Agreement; and provided, further, that Purchaser’s remedies in the instance that any of Seller’s Representations are untrue as of the Closing Date, are limited to those set forth in Article XII:
(a) All consentsSeller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Agreement, authorizations has or at the Closing will have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationAgreement, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(db) Immediately prior Except relating to the delivery or cancellationExisting Debt, as the case may be, of the applicable Redeemed Opco LLC Interests Seller has all necessary approvals to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds execute and will hold valid title to the applicable Redeemed Opco LLC Interestsdeliver this Agreement and perform its obligations hereunder, and holds and no other authorization or approvals, whether of governmental bodies or otherwise, will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or necessary in the aggregate, have a material adverse effect the ability of such order to enable Seller to consummate enter into or comply with the transactions contemplated by terms of this Agreement.
(c) This Agreement and the other documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will have been duly entered into by Seller, and will constitute legal, valid and binding obligations of Seller. Neither this Agreement nor anything provided to be done under this Agreement violates or shall violate any contract, document, understanding, agreement or instrument to which Seller is a party or by which it is bound.
(d) Seller is a “United States person” within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
(e) Such The Leases provided to Purchaser by Seller are true, correct and complete copies of the Leases between Seller and the tenants thereunder, including any and all amendments, renewals and extensions thereof. The Schedule of Existing Tenants attached hereto as Exhibit B was prepared for Seller by Seller’s property manager of the Property, and to Seller’s knowledge, is true and correct in all material respects and lists all Leases as of the Effective Date and a report of delinquencies under the Leases existing as of the Effective Date and is the schedule of Leases maintained by Seller and relied on by Seller for internal administration purposes. As of the Effective Date and except as set forth on Exhibit B-2, (either individually i) Seller has received no written notice of any default by the landlord under the Leases, and (ii) Seller has not entered into any oral leases affecting the Property.
(f) To Seller’s knowledge, Seller has received no written notice from any governmental body or each together agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to the Property, which violation or alleged violation has not been corrected.
(g) Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to Hazardous Materials on the Property.
(h) Seller and, to Seller’s knowledge, its advisorspartners, members, principal stockholders and any other constituent entities (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/enforcement/ofac/sdn/t11sdn.pdf> or at any replacement website or other replacement official publication of such knowledge list and experience (ii) is currently in financial or business matters that it is capable compliance with and will at all times during the term of evaluating this Agreement (including any extension thereof) remain in compliance with the merits and risks regulations of the transactions contemplated by this Agreement. Such Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
(i) To Seller’s knowledge, no pending or threatened litigation involving the Property or Seller has had exists which if determined adversely would restrain the opportunity to ask questions and receive answers concerning the terms and conditions consummation of the transactions contemplated by this Agreement as such or would declare illegal, invalid or non-binding any of Seller’s obligations or covenants to Purchaser pursuant to this Agreement.
(j) To Seller’s knowledge, the Service Agreements provided to Purchaser by Seller has requestedare true, correct and complete copies of the Service Agreements relevant to the Property, including any and all amendments, renewals and extensions thereof. Such To Seller’s knowledge, no party is in material default with respect to its obligations or liabilities under any of the Service Agreements.
(k) There are no employees who are employed by Seller or any property manager engaged by Seller in the operation, management or maintenance of the Property whose employment will continue after Closing. On and after the Closing, there will be no obligations concerning any pre-Closing employees of Seller, nor will there be any property management agreement which will be binding on Purchaser or the Property.
(l) There is no receivership, or voluntary or involuntary proceeding in bankruptcy or pursuant to any other debtor relief laws, pending by or against Seller.
(m) To Seller’s knowledge, there are no outstanding options to purchase, rights of first offer or rights of first refusal, with respect to the Property.
(n) Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon no written notice from any express or implied representations or warranties Existing Lender of any nature made default or alleged default by or on behalf of Seller (as Borrower) under the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this AgreementExisting Debt.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Preferred Apartment Communities Inc), Purchase and Sale Agreement (Highwoods Realty LTD Partnership)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to Section 8.2.4, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property, which will adversely impact Seller’s ability to convey the Property;
6.1.4 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.6 To Seller's knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.10) is accurate in all material respects;
6.1.7 To Seller's knowledge, the Initial Closing or Option Property Contracts List (as updated pursuant to Section 5.2.12) is accurate in all material respects;
6.1.8 Seller has not, and, as of the Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances shall not have (iA) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have made a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the Sellers filing of any involuntary petition by Seller’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, which remains pending as of such time, (D) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, which remains pending as of such time, (E) admitted in this Agreementwriting its inability to pay its debts as they come due, or (F) made an offer of settlement, extension or composition to its creditors generally; and
6.1.9 To Seller’s knowledge, there are no condemnation proceedings pending or threatened that would result in the taking of any portion of the Property. To Seller’s knowledge, Seller has not received any written notice of any special assessment proceedings affecting the Property.
Appears in 2 contracts
Sources: Purchase and Sale Contract, Purchase and Sale Contract (Consolidated Capital Institutional Properties)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1 Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, subject to Section 8.2.5, has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.5, this Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property, other than East Townhouses Association v. ORP One L.L.C., ▇▇▇▇▇ County Circuit Court, State of Michigan, Case No. 09-007419-CH (the "Association Litigation");
6.1.4 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller's knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is accurate in all material respects; and
6.1.6 To Seller's knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such 6.1.7 Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claimsis not a Prohibited Person.
6.1.8 To Seller's knowledge, except for any encumbrances (i) imposed under applicable securities laws third party persons who hold direct or the organizational documents indirect ownership interests in Seller, none of the Company Seller's affiliates or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have parent entities is a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementProhibited Person.
6.1.9 To Seller's knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the property of or beneficially owned by a Prohibited Person.
6.1.10 To Seller's knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the proceeds of specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7).
6.1.11 To Seller's knowledge: (eA) Such no hazardous or toxic materials or other substances regulated by applicable federal or state environmental laws are stored by Seller on, in or under the Property in quantities which violate applicable laws governing such materials, and (either individually B) the Property is not used by Seller for the storage, treatment, generation or each together with its advisorsmanufacture of any hazardous or toxic materials or other substances in a manner which would constitute a violation of applicable federal or state environmental laws.
6.1.12 To Seller's knowledge: (A) has such knowledge and experience in financial no management agents or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate other personnel employed in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf operation of the Company Property have the right to continue such employment after the Closing Date; (b) there are no collective bargaining agreements existing with respect to the Property; and (c) there are no claims for brokerage commissions or Opco, whether fees with respect to the Leases which will survive Closing or remain unpaid after the Closing Date for which Purchaser will be responsible.
6.1.13 Seller maintains insurance on the Property in amounts not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for less than the benefit full replacement cost (without depreciation) of the Sellers Property (above foundations and excluding any personal property of Tenants), against fire and such other risks as may be included in this Agreementstandard forms of "Special Form" coverage insurance.
Appears in 2 contracts
Sources: Purchase and Sale Contract, Purchase and Sale Contract (Oxford Residential Properties I LTD Partnership)
Seller’s Representations. In connection with the transactions contemplated hereby, each Each of the Sellers, Sellers severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date that:
Purchaser (a) All consentsthat such Seller has the power and authority (or the capacity if an individual) to execute and deliver this Agreement, approvals(b) that, authorizations if a corporation, partnership or other entity, this Agreement has been duly authorized by all requisite action on the part of the Seller, (c) that the Seller has duly executed and orders necessary for delivered this Agreement and this Agreement is a valid and binding agreement, enforceable against such Seller in accordance with its terms, (d) that neither the execution and delivery of this Agreement nor the consummation by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein hereby will not (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a conflict with, or default under, any material indenturecontract, material mortgagecommitment, material deed agreement, understanding, arrangement or restriction of trust, material loan agreement or other material agreement or instrument any kind to which such Seller is a party or by which such Seller is bound and, if the Seller is a corporation, partnership or other entity, the organizational documents thereof, (e) that on the date hereof such Seller has, and at any Closing (as defined below) hereunder such Seller will have (without exception), good and valid title to which such Seller's Shares, free and clear of all claims, liens, charges, encumbrances and security interests, restricting such Seller's ability to enter into this Agreement or perform its obligations hereunder, (f) that there are no options or rights to purchase or acquire, or agreements relating to any such rights with respect to, any of such Seller's Shares except pursuant to this Agreement, (g) that the property transfer of such Seller's Shares to the Purchaser hereunder will vest in the Purchaser good and valid title to such Shares, free and clear of all claims, liens, charges, encumbrances, security interests or assets restrictions on voting and (h) that the number of Shares set forth in Schedule A hereto opposite the name of such Seller is subject, (ii) violate any provision constitutes all of organizational documents the Shares owned beneficially or of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over record by such Seller or any of its properties; except(other than, in the case of clauses the Sellers listed on Schedule A other than ▇▇-▇▇▇ Acquisition Fund, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Partners, L.P. and State Street Bank and Trust Company, not individually but as trustee of the 1989 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust (icollectively, the "Major Sellers"), (ii) and (iiifor differences therefrom which are not material), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Signature Brands Usa Inc), Stock Purchase Agreement (Sunbeam Corp/Fl/)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller represents and warrants to Purchaser the Company and Opco following (collectively, “Seller’s Representations”) as of the Initial Closing Effective Date and each Option as of the Closing Date thatDate, provided that certain of Seller’s Representations may be modified as a result of changes in facts or circumstances after the date hereof, which shall not be deemed to cause a breach of any of Seller’s Representations unless Seller causes such changed facts or circumstances in violation of the terms of this Agreement; and provided, further, that Purchaser’s remedies in the instance that any of Seller’s Representations are untrue as of the Closing Date, are limited to those set forth in Article XII:
(a) All consentsSeller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Agreement, authorizations has or at the Closing will have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationAgreement, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(db) Immediately prior Except relating to the delivery or cancellationExisting Debt, as the case may be, of the applicable Redeemed Opco LLC Interests Seller has all necessary approvals to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds execute and will hold valid title to the applicable Redeemed Opco LLC Interestsdeliver this Agreement and perform its obligations hereunder, and holds and no other authorization or approvals, whether of governmental bodies or otherwise, will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or necessary in the aggregate, have a material adverse effect the ability of such order to enable Seller to consummate enter into or comply with the transactions contemplated by terms of this Agreement.
(c) This Agreement and the other documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will have been duly entered into by Seller, and will constitute legal, valid and binding obligations of Seller. Neither this Agreement nor anything provided to be done under this Agreement violates or shall violate any contract, document, understanding, agreement or instrument to which Seller is a party or by which it is bound.
(d) Seller is a “United States person” within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
(e) Such The Leases provided to Purchaser by Seller are true, correct and complete copies of the Leases between Seller and the tenants thereunder, including any and all amendments, renewals and extensions thereof. The Schedule of Existing Tenants attached hereto as Exhibit B was prepared for Seller by Seller’s property manager of the Property, and to Seller’s knowledge, is true and correct in all material respects and lists all Leases as of the Effective Date and a report of delinquencies under the Leases existing as of the Effective Date and is the schedule of Leases maintained by Seller and relied on by Seller for internal administration purposes. As of the Effective Date and except as set forth on Exhibit B-2, (either individually i) Seller has received no written notice of any default by the landlord under the Leases, and (ii) Seller has not entered into any oral leases affecting the Property.
(f) To Seller’s knowledge, Seller has received no written notice from any governmental body or each together agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to the Property, which violation or alleged violation has not been corrected.
(g) Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to Hazardous Materials on the Property.
(h) Seller and, to Seller’s knowledge, its advisorspartners, members, principal stockholders and any other constituent entities (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/enforcement/ofac/sdn/t11sdn.pdf> or at any replacement website or other replacement official publication of such knowledge list and experience (ii) is currently in financial or business matters that it is capable compliance with and will at all times during the term of evaluating this Agreement (including any extension thereof) remain in compliance with the merits and risks regulations of the transactions contemplated by Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
(i) Except as set forth on Schedule 2 attached hereto which is hereby incorporated in and constitutes part of this Agreement. Such , to Seller’s knowledge, no pending or threatened litigation involving the Property or Seller has had exists which if determined adversely would restrain the opportunity to ask questions and receive answers concerning the terms and conditions consummation of the transactions contemplated by this Agreement or would declare illegal, invalid or non-binding any of Seller’s obligations or covenants to Purchaser pursuant to this Agreement.
(j) To Seller’s knowledge, the Service Agreements provided to Purchaser by Seller are true, correct and complete copies of the Service Agreements relevant to the Property, including any and all amendments, renewals and extensions thereof. To Seller’s knowledge, no party is in material default with respect to its obligations or liabilities under any of the Service Agreements.
(k) There are no employees who are employed by Seller or any property manager engaged by Seller in the operation, management or maintenance of the Property whose employment will continue after Closing. On and after the Closing, there will be no obligations concerning any pre-Closing employees of Seller, nor will there be any property management agreement which will be binding on Purchaser or the Property.
(l) There is no receivership, or voluntary or involuntary proceeding in bankruptcy or pursuant to any other debtor relief laws, pending by or against Seller.
(m) To Seller’s knowledge, there are no outstanding options to purchase, rights of first offer or rights of first refusal, with respect to the Property.
(n) To Seller’s knowledge, (i) copies of the Ground Leases delivered to Purchaser for review are true, accurate and complete copies thereof, and constitute the entire agreement between Seller and Ground Lessors with respect to the Ground Leases; (ii) the Ground Leases are in full force and effect and have not been amended or modified except as such set forth in the documents evidencing the Ground Leases (and all amendments thereto) delivered from Seller to Purchaser; and (iii) Seller has requested. Such not received any written notice from the Ground Lessors that Seller is in default in any respect of its obligations thereunder that has not been cured, and Seller has received all information not delivered any written notice to Ground Lessors that it believes Ground Lessors are in default in any respect of any of their obligations under the Ground Leases.
(o) (i) 8 West has the authority and right to sell and assign its right, title and interest in, to and under, or arising out of, the Mezzanine Loan; (ii) 8 West is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it sole owner of the Mezzanine Loan and has not relied upon assigned, pledged, promised, encumbered or otherwise transferred any express interest in the Mezzanine Loan or implied representations any of the Mezzanine Loan Documents to any other person or warranties party; (iii) the copies of the Mezzanine Loan Documents provided by Seller to Purchaser are true and complete copies thereof, and to Seller’s actual knowledge, each of such instruments is in full force and effect and binding in accordance with its terms, and has not been modified; and (iv) as of the Effective Date, the principal balance of the Mezzanine Loan, the date to which interest has been paid thereunder, and the escrow/reserve funds, if any, paid under the terms of the Mezzanine Loan Documents are as set forth on Exhibit J-1. To the extent that 8 West receives any nature made by principal or interest payments from or on behalf of the Company or Opcoborrower under the Mezzanine Loan Documents after the Effective Date, whether or not Seller shall provide Purchaser with a written statement on the Closing Date with any such representations, warranties or statements were made in writing or orally, except as expressly set forth for updates to the benefit outstanding principal balance of the Sellers Mezzanine Loan, the date to which interest has been paid and the amount of any escrow/reserve funds, if any, paid in this Agreementconnection therewith.
(p) Seller has received no written notice from any Existing Lender of any default or alleged default by Seller (as Borrower) under the Existing Debt.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Preferred Apartment Communities Inc), Purchase and Sale Agreement (Highwoods Realty LTD Partnership)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller’s Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, authorizations subject to Section 8.2.4, has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property, which will adversely impact Seller’s ability to convey the Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.5 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.6 To Seller’s knowledge, the Rent Roll (das updated pursuant to Section 5.2.9) Immediately prior is accurate in all material respects.
6.1.7 To Seller’s knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects.
6.1.8 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller's knowledge, any other possessory interests of any person.
6.1.9 All penalty amounts required to be paid by AIMCO pursuant to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, Consent Agreement have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementbeen satisfied.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties), Purchase and Sale Contract (Consolidated Capital Growth Fund)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1. Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to Section 8.2.4, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2. Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3. Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.4. To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.5. To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.6. To Seller's knowledge, the Rent Roll (das updated pursuant to Section 5.2.10) Immediately prior is accurate in all material respects.
6.1.7. To Seller's knowledge, the Property Contracts List (as updated pursuant to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Section 5.2.11) is accurate in all material respects.
6.1.8. Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claimsis not a Prohibited Person.
6.1.9. To Seller's knowledge, except for any encumbrances (i) imposed under applicable securities laws third party persons who hold direct or the organizational documents indirect ownership interests in Seller, none of the Company Seller's affiliates or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have parent entities is a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementProhibited Person.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement6.1.10. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orallyTo Seller's knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the property of or beneficially owned by a Prohibited Person.
6.1.11. To Seller's knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the proceeds of specified unlawful activity as expressly set forth for the benefit of the Sellers defined in this Agreement18 U.S.C. § 1956(c)(7).
Appears in 2 contracts
Sources: Purchase and Sale Contract (Davidson Income Real Estate Lp), Purchase and Sale Contract (Davidson Growth Plus Lp)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Company and Opco Seller’s representations are as of the Initial Closing Date and each Option Closing Date thatfollows:
(a) All consents, approvals, authorizations and orders necessary There are no contracts or other obligations outstanding for the execution and delivery by such Seller sale, exchange, or transfer of this Agreement and for the redemption and delivery all or cancellation, as the case may be, any part of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by Property other than this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunderContract.
(b) This Agreement has been duly authorizedThere are no sites of historical or archaeological importance on the Property, executed and delivered by such Sellerwhich in any way would impede, curtail, limit, or restrict the development of the Property.
(c) The redemption of Seller shall not at any time prior to Closing grant to any person an interest in the applicable Redeemed Opco LLC Interests of such Property.
(d) Seller hereunder has:
(i) all requisite power and authority:
(1) to own its property and operate its business, and
(2) to enter into this Contract and consummate the compliance sale contemplated in this Contract, and
(ii) by such Seller with all of proper action, duly authorized the provisions execution and delivery of this Agreement Contract and the consummation of the transactions sale contemplated herein in this Contract.
(e) At or prior to the Closing, any existing leases covering the Property shall be fully terminated and any existing tenants of the Property, other than Buyers shall have fully vacated the Property, unless otherwise agreed to by the Parties.
(f) The Seller’s execution of this Contract and consummation of the sale do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, under the terms of provisions of any material indenture, material mortgageagreement, material deed of trust, material loan agreement instrument or other material agreement or instrument obligation to which such the Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute Property or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementportion thereof is bound.
(dg) Immediately prior to Seller is the delivery or cancellation, as the case may be, owner of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid good marketable fee simple title to the applicable Redeemed Opco LLC InterestsProperty, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all any liens, deeds of trust, pledges, leases, charges, encumbrances, equities joint ownerships, or claimsrestrictions of any kind, except for any encumbrances (i) imposed under applicable securities laws liens to be discharged at or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller prior to consummate the transactions contemplated by this AgreementClosing.
(eh) Such Seller shall, upon the date of Closing and for as long as necessary thereafter, assist Buyer in obtaining an Oklahoma Medical Marijuana Authority (either individually or each together with its advisorsOMMA) has manufacturing license, and provide the requisite funds for obtaining such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementlicense.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Agro Capital Management Corp.), Purchase and Sale Agreement (Agro Capital Management Corp.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials (other than as set forth in Sections 6.1.5, 6.1.6 or 6.1.7), or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “ Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and subject to Section 8.2.4 and the receipt of all approvals required from the Lender for the Loan Assumption and Release, approvalshas or at the Closing shall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, authorizations and orders necessary all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 To Seller’s knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property, which will adversely impact the Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Materials delivered to Purchaser and that have been prepared by Seller (as opposed to Materials prepared by any third parties) are true and correct in all material respects.
6.1.6 To Seller’s knowledge, the Rent Roll (das updated pursuant to Section 5.2.9 is accurate in all material respects; and
6.1.7 To Seller’s knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties 3)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1. Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2. Seller is not a "foreign person," as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3. Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller's current insurance policy(ies), both of which shall be disclosed to Purchaser in the Materials or otherwise, to Seller's knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller's ability to convey the Property;
6.1.4. To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.5. To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.6. To Seller's knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects;
6.1.7. To Seller's knowledge, the Initial Closing or Option Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.8. Seller has not, and, as of the Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances shall not have (iA) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have made a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the Sellers filing of any involuntary petition by Seller’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, which remains pending as of such time, (D) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, which remains pending as of such time, (E) admitted in this Agreementwriting its inability to pay its debts as they come due, or (F) made an offer of settlement, extension or composition to its creditors generally;
6.1.9. To Seller’s knowledge, there are no condemnation proceedings pending or threatened that would result in the taking of any portion of the Property. To Seller’s knowledge, Seller has not received any written notice of any special assessment proceedings affecting the Property;
6.1.10. Seller is not a Prohibited Person;
6.1.11. To Seller’s knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, none of Seller’s affiliates or parent entities is a Prohibited Person; and
6.1.12. To Seller’s knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the property of or beneficially owned by a Prohibited Person.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Fund Xix)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants order to the Company and Opco as of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority induce Buyer to enter into this Agreement and purchase the Property, and subject to sellany exceptions set forth in Schedule 13.1 to this Agreement, assigneach Seller with respect to itself and its respective Property and Tenant with respect to itself, transfer as applicable, make the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of the Property for twelve (12) months. Any statements in this Agreement of a Seller or Tenant “to the best of Seller’s (or Tenant’s) knowledge or “to the Seller’s (or Tenant’s) knowledge” or “knowledge of” shall refer to the actual knowledge of the following executive officer(s) of ▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and each on-site Facility manager:
(1) Seller, Tenant, and any related entity which is a party to a closing document, has obtained, or will obtain prior to Closing, all necessary authorizations, consents and releases to enable it to execute and deliver or cancelthis Agreement and all closing documents contemplated herein, as and to consummate the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereundertransaction contemplated hereby.
(b2) This Agreement Seller holds, or will hold at the time of Closing, fee simple title to the Facility Premises, free of all liens, assessments and encumbrances except for the Permitted Exceptions and any matters consented to in writing by Buyer, and liens and encumbrances which will be paid and discharged or otherwise released at or prior to the Closing. Neither Seller nor Tenant has been duly authorizedknowledge of any condition or state of facts which would preclude, executed limit or restrict the business operations contemplated, pursuant to the terms of the Lease, to be conducted by Tenant or Seller at the Premises.
(3) Seller has good and delivered marketable title to the FF&E with respect to the Property.
(4) Except for construction warranties with respect to the Improvements and the Contracts, there are no service or maintenance contracts affecting the Property to which Buyer will be bound upon Closing.
(5) The Facility Premises and the proposed use thereof by Tenant and Subtenant and the condition thereof do not violate in any material respect as to a particular Facility any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation, any building code or fire code applicable to such Premises, or any other applicable federal, state or federal laws, regulations or codes (collectively, “Applicable Laws and Restrictions”), and are not designated by any governmental agency to be in a flood plain area. Seller has, on or before the Effective Date, provided written notice to Buyer of any continuing, alleged or potential violations of Applicable Laws and Restrictions known to Seller.
(6) There is no pending or, to Seller’s or Tenant’s knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of the Facility Premises.
(7) Neither Seller nor Tenant is a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller and Tenant shall certify its respective taxpayer identification number at Closing.
(8) To the best of Seller’s knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to the Facility Premises.
(9) With respect to each separate Property, the Land underlying such Property is a separate parcel for real estate tax assessment purposes.
(10) All of the financial data regarding the construction, ownership and operation of the Property that Seller has provided, or caused to be provided, to Buyer is true, complete and correct in all material respects.
(11) To the best of Seller’s knowledge, the Improvements are in good structural condition and repair and are suitable for the purposes currently being used and have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(12) As of the Closing, there will be in effect all material Permits and other authorizations necessary for the then current use, occupancy and operation of the Property.
(13) Except as previously disclosed by Seller to Buyer in writing, no Hazardous Materials are, will be, or to the best of Seller’s knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Facility Premises in violation of any applicable statutes, ordinances or regulations; the Facility Premises is in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller’s knowledge, heretofore operated on the Facility Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller’s knowledge, threatened action or proceeding arising out of the condition of the Facility Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(14) As of the Closing Date, the Facility Premises complies in all material respects with the Americans with Disabilities Act and all related and applicable laws, rules, regulations and/or orders governing or relating to accessibility.
(15) Neither Seller nor Tenant has received any written notice of any investigation, audit, survey, action or proceeding whether pending or threatened, that (a) questions the validity of this Agreement or the Lease or any action taken or to be taken pursuant hereto, or (b) may subject the Property to a material liability which is not covered by insurance, whether or not Buyer is indemnified by Seller or Tenant with respect to the same, (c) The redemption involves condemnation or eminent domain proceedings against any material part of the applicable Redeemed Opco LLC Interests Facility Premises, or (d) any other claim, litigation or regulatory action pending or threatened.
(16) As of such the Closing Date, to the best of Seller’s knowledge, all permits, licenses and approvals required by any governmental or quasi-governmental, body, department, commission, board, bureau, instrumentality or officer, or otherwise appropriate with respect to the construction, operation, leasing, maintenance or use of the Property or any part thereof, will have been issued, are past all appeals periods and are valid and in full force and effect and no provision, condition or limitation of any of the same has been breached or violated.
(17) Seller hereunder specifically acknowledges and understands that where Seller knows of any fact(s) materially affecting the value or desirability of the Property, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. To Seller’s knowledge, no representation or warranty of Seller in this Agreement contains any untrue statement of material fact or omits a material fact, the significance of which is known to Seller, that is necessary, in light of the circumstances under which it is made, to make the statements contained therein not misleading.
(18) No person or entity other than the Seller Parties and the compliance by such Seller with residents of each Property has (i) any right or option to acquire all or any portion of the provisions Property, or (ii) any tenancy or other interest or right of occupancy in or with respect to all or any portion of the Property. All of the representations, warranties and agreements of Sellers set forth herein and elsewhere in this Agreement shall be true upon the execution of this Agreement and the consummation shall be reaffirmed and repeated in writing at and as of the transactions contemplated herein will Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date for twelve (i12) conflict with or result months, provided, however, the representations, warranties and agreements contained in Section 13.1 above shall survive for a breach or violation period of any time after Closing equal to the expiration of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), limitations as would not reasonably be expected to, individually or in the aggregate, have to a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such claim regarding said representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementand agreements.
Appears in 1 contract
Sources: Purchase and Sale Contract (Care Investment Trust Inc.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, authorizations subject to Section 8.2.4, has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller's knowledge, any other possessory interests of any person;
6.1.3 Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.6 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.7 To the knowledge of Seller, the Rent Roll (das updated pursuant to Section 5.2.12) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Oxford Residential Properties I LTD Partnership)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, SELLER represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date BUYER that:
(a) All consentsIf SELLER is a formed entity, approvals, authorizations SELLER is in good standing and orders necessary has the power to sell the Business and Assets as provided for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.herein;
(b) This Agreement SELLER is the owner of and has been duly authorizedgood and marketable title to the Business and Assets, executed free and delivered clear of any and all liens, encumbrances or claims whatsoever, except those to be paid and satisfied at Closing or assumed by such Seller.BUYER as agreed by the parties;
(c) The redemption of SELLER possesses all licenses and/or permits necessary to operate the applicable Redeemed Opco LLC Interests of such Seller hereunder business, and the compliance where capable and/or permitted by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions oflaw, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument agrees to which such Seller is a party or by which such Seller is bound or assign/transfer them to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.BUYER at Closing;
(d) Immediately prior to the delivery or cancellationthere will be no judgments, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrancesdebts, equities or accounts payable, claims, except for any encumbrances or taxes (isales or otherwise) imposed under applicable securities laws due, fixed and contingent, or the organizational documents of the Company actions or Opco proceedings pending or (ii) as would not reasonably be expected to, individually threatened by or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.against SELLER at Closing;
(e) Such Seller SELLER agrees to conduct and operate the business up to the Closing Date in accordance with all laws, rules and regulations, in the regular course of business, and in the same manner as presently conducted and operated;
(either individually f) ▇▇▇▇▇▇ agrees not to violate the terms of any business contract with third parties;
(g) SELLER will pay in full and satisfy all sales taxes, interest and penalties which may be due and/or owing to the _____ Department of Revenue at or each together with its advisorsprior to Closing, and
(h) at Closing, ▇▇▇▇▇▇ agrees to execute and deliver to BUYER an agreement to indemnify and hold BUYER harmless from any and all sales taxes, interest and penalties that may be asserted against BUYER as a result of SELLER'S operations prior to Closing.
(i) SELLER has such knowledge and experience in financial not entered into contracts or business matters that it is capable of evaluating the merits and risks indebtedness outside of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions ordinary course of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary business, including, but not limited to, governmental loans (e.g., CARES Act, PPP Loan, or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express SBA EIDL), or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementother assistance.
Appears in 1 contract
Sources: Business Asset Purchase Agreement (Bionik Laboratories Corp.)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally Seller hereby warrants and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Buyer that:
(a) All consentsSeller is a duly formed, approvalsvalidly existing in the state of in which it is authorized to do business and in each jurisdiction its operates, authorizations duly chartered to conduct business as a financial institution under the laws of the State in which each Property is located and orders necessary for the execution United States of America, is in good standing and delivery by such Seller of regulatory compliant, and is authorized to enter into this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by hereby; each individual executing this Agreement; Agreement on Seller’s behalf is authorized to do so and such this Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms.
(b) Seller has full right, power and authority and is duly authorized to enter into this Agreement Agreement, to perform each of these covenants on its part to be performed hereunder and to sellexecute and deliver, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to perform its obligations under all documents required to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Sellerit pursuant to this Agreement, and this Agreement constitutes the valid and binding obligation of Seller enforceable in accordance with its terms.
(c) The redemption There are no actions, suits or proceedings pending, or, to the actual knowledge of Seller, threatened, against or affecting Seller or the applicable Redeemed Opco LLC Interests of such Seller hereunder and Property, which, if determined adversely to Seller, would adversely affect its ability to perform its obligations hereunder.
(d) To the compliance by such Seller with all of Seller’s actual knowledge, neither the provisions execution, delivery or performance of this Agreement and the consummation of the transactions contemplated herein will not nor compliance herewith (i) conflicts or will conflict with or results or will result in a breach of or violation of any of the terms constitutes or provisions of, or will constitute a default underunder (A) the articles of incorporation, any material indenture, material mortgage, material deed of trust, material loan agreement by-laws or other material organizational certificate(s) or formation documents of Seller, (B) any law or any court order or (C) any agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementparty.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters Except for the approval of Seller’s auditing firm that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions sale contemplated by this Agreement as such qualifies for gain recognition under U.S. GAAP rules (the “Auditor’s Approval”), no authorization, consent, or approval of any governmental authority, agency or regulatory entity (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of their respective obligations hereunder. Seller shall use commercially reasonable efforts to deliver evidence of the Auditor’s Approval to Buyer at least five (5) Business Days prior to the expiration of the Study Period. Evidence of approval will be delivered to Buyer via email from the chief financial officer of Seller.
(f) Seller has requested. Such not entered into any commitments or agreements with any governmental authorities or agencies affecting the Property that have not been disclosed in writing to Buyer.
(g) Except as otherwise disclosed in writing to Buyer by ▇▇▇▇▇▇, ▇▇▇▇▇▇ has received no written notice from any governmental agency or official to the effect that any condemnation proceeding relating to the Property is pending or contemplated.
(h) Except as otherwise disclosed in writing to Buyer by Seller, Seller has not received any written notice from any governmental agency requiring the correction of any condition with respect to the Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation, which has not been cured or waived.
(i) To the Seller’s actual knowledge, there is no litigation or administrative proceeding pending with respect to any portion of the Property, and Seller has received no written notice that any litigation with respect to any portion of the Property is threatened.
(j) Seller has delivered to Buyer complete copies of all information leases and other occupancy agreements affecting the Property, if any. Seller has received no written notice from any tenant claiming that it believes Seller is necessary currently in default in its obligation as landlord under any lease, to the Seller’s actual knowledge, no tenant is in default in any obligation under its lease; and no rent has been paid by any tenant more than one (1) month in advance.
(k) Except as otherwise disclosed to Buyer in writing by Seller, to Seller’s actual knowledge, there are no Hazardous Materials stored on, incorporated into, located on, present in or appropriate used on the Property in connection with violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations as of the transactions contemplated by date of this Agreement. Such If after the date of this Agreement Seller acknowledges that it has not relied upon receives any express such notice or implied representations obtains such actual knowledge, the Seller shall promptly disclose such notice or warranties knowledge to Buyer. For purposes of this Agreement, the term “Hazardous Materials” shall mean any nature made by substance which is or on behalf contains: (i) any “hazardous substance” as now or hereafter defined in Section 101(14) of the Company Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) (“CERCLA”) or Opcoany regulations promulgated under CERCLA; (ii) any “hazardous waste” as now defined the Recourse Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601 et. seq.); (iv) gasoline, diesel fuel or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or not nonfriable; (vi) polychlorinated biphenyls; and (vii) any such representationsadditional substances or materials which are now considered to be hazardous or toxic under any laws, warranties ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now enacted, promulgated, or statements were made in writing or orallyamended, except as expressly set forth for the benefit of the Sellers United States, the states, the counties, the cities or any other political subdivisions in this Agreementwhich the Real Property is located and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Real Property, the Real Property or the use of the Real Property relating to pollution, the protection or regulation of human health, natural resources or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or waste into the environment (including, without limitation, ambient air, surface water, ground water or land or soil).
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Plumas Bancorp)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1. Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, subject to any approvals required from Lender for the Loan Assumption and Release, has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms.
(d) Immediately prior to 6.1.2. Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended.
6.1.3. Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property, which will adversely impact Seller’s ability to convey the Property.
6.1.4. To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests to Opco at Property Contracts that will not be terminated on the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementDate.
6.1.5. To Seller’s knowledge, the Rent Roll (eas updated pursuant to Section 5.2.9) Such Seller is accurate in all material respects.
6.1.6. To Seller’s knowledge, the Property Contracts List (either individually or each together with its advisorsas updated pursuant to Section 5.2.10) has such knowledge and experience is accurate in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreementall material respects.
6.1.7. Such To Seller’s knowledge, Seller has had not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Property.
6.1.8. To Seller’s knowledge, Seller has requested. Such Seller has not received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties written notice from a governmental agency of any nature made by pending or on behalf of threatened condemnation or taking proceedings affecting the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this AgreementProperty.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Growth Fund Xxii)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller represents and warrants to Purchaser the Company and Opco following as of the Initial Closing Date Date, that except as set forth in the Disclosure Schedules (the parties agreeing that Seller shall be deemed to have satisfied its representations and each Option warranties with respect to delivery of any documents or any other materials if such documents or materials are made available through the Data Site prior to the Closing Date that:Date):
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation; and has the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and has taken all corporate, approvalspartnership, authorizations and orders necessary limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationAgreement, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein Transactions. The execution, delivery and compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or default would have a Material Adverse Effect or (ii) result in a violation or breach, in any material respect, of any legal requirement applicable to Seller or by which Seller or the Property is bound. This Agreement is a valid and binding agreement, enforceable against Seller in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the rights of creditors generally and equitable principles and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction.
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended.
6.1.3 Other than as described on Schedule 6.1.3, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending, or to which Seller’s Knowledge, threatened in writing against Seller, Manager or the Property that have had, or would reasonably be expected to have, a material adverse effect on the applicable Facility or the operations thereof.
6.1.4 Other than matters reflected in the Title Documents, the Property Contracts, the Permits identified on Schedule 6.1.12 and the Resident Agreements and the Commercial Leases, Seller is not party to any material contract, agreement, lease, license, sublicense or other arrangement relating to the use, ownership, management, operation, maintenance or repair of the Property that will be in effect with respect to any of the property or assets Facilities following the Closing.
6.1.5 A rent roll for each Facility (each, a “Rent Roll”) dated not earlier than thirty (30) days prior to the Closing Date has been made available to Purchaser. To Seller’s Knowledge, each such Rent Roll (and any updated Rent Roll for any Facility provided by Seller to Purchaser) is accurate, in all material respects, as of such the date indicated therein, and each Rent Roll is the rent roll used and relied upon by Seller is subject, (ii) violate in connection with its operation of the applicable Facility.
6.1.6 Seller has received no written notice from any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation governmental authority with jurisdiction over the Property of any court violation by the Property of any laws, ordinances or governmental agency regulations applicable to the Property that remains uncured or body having jurisdiction over unresolved, except to the extent any such Seller or any of its properties; exceptviolation has not had, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected toto have, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate applicable Facility or the transactions contemplated by this Agreementoperations thereof.
6.1.7 Except as disclosed in the Title Documents, (di) Immediately Seller has not submitted and, to Seller’s Knowledge, no other Person has submitted, in each case as of the Closing Date, an application for the creation of any special taxing district affecting the Property (or any part thereof), or annexation thereby, or inclusion therein and (ii) Seller has not received written notice prior to the Closing Date that any governmental authority has commenced or intends to commence construction of any special or off-site improvements or has imposed or increased or intends to impose or increase any special or other assessment against the Property (or any part thereof).
6.1.8 Seller has not (A) made a general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, which remains pending as of such time, (D) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, which remains pending as of such time, (E) admitted in writing its inability to pay its debts as they come due, or (F) made an offer of settlement, extension or composition to its creditors generally.
6.1.9 Other than as described in Schedule 6.1.9, Seller has not granted any option or right of first refusal or first opportunity to any party to acquire any fee or ground leasehold interest in any portion of the Property.
6.1.10 Other than as described on Schedule 6.1.10 (collectively, the “Required Consents”), no consent, approval, order or authorization of, or registration, declaration or filing with, any applicable governmental authority is required to be obtained or made by Seller in connection with the execution and delivery of this Agreement or cancellationthe consummation of the Transactions.
6.1.11 To Seller’s Knowledge, Schedule 6.1.11 identifies, as the case may be, of the applicable Redeemed Opco LLC Interests Closing Date, all material Permits possessed by Seller or Manager exclusively with respect to Opco at operation of the Initial Facilities.
6.1.12 All property-level employees engaged in the operation of the Facilities are employed by Harvest Management Sub TRS Corp. (the “Facility Employees”). To Seller’s Knowledge, as of the Closing Date, (i) there are no labor or Option Closingcollective bargaining agreements which pertain to the Facility Employees, and (ii) there are no labor unions or other organizations representing, purporting to represent or attempting to represent, any of the Facility Employees.
6.1.13 On or prior to the Closing Date, copies of the Property Statements for each of the Facilities have been provided to Purchaser. To Seller’s Knowledge, the Property Statements are accurate and complete, in all material respects, and fairly present, in all material respects, the financial condition and the results of operations for the Facilities, as applicable, as of the respective dates indicated in such Seller holds and will hold valid title Property Statements.
6.1.14 There is no violation of Environmental Laws related to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, Property except for any encumbrances as (i) imposed under applicable securities laws or disclosed in the organizational documents environmental reports, studies and other information relating to the environmental condition of the Company Property delivered by Seller to Purchaser or Opco made available for Purchaser’s review in the Materials or (ii) as has not had, and would not reasonably be expected toto have, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate applicable Facility or the transactions contemplated by this Agreementoperations thereof.
(e) Such Seller (either individually 6.1.15 To Seller’s Knowledge and except as otherwise disclosed in the property condition reports with respect to the Facilities made available to Purchaser in the Materials prior to the Closing Date, there currently exists no structural or each together with its advisors) has such knowledge mechanical defects in any Facility, including, without limitation, the plumbing, roofing, heating, air conditioning and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orallyelectrical systems thereof, except as expressly set forth for the benefit of the Sellers in this Agreementhas not had, and would not reasonably be expected to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sabra Health Care REIT, Inc.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing or caused by Purchaser or New Property Manager, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date (except as provided otherwise below and each Option further provided that Purchaser’s remedies if any of such Seller’s Representations are untrue as of the Closing Date that:are limited to those set forth in Section 11.2):
(a) All consents7.1.1. Organization. Such Seller is organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth on the Seller Information Schedule and has or at the Closing Date shall have the entity power and authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, authorizations and orders necessary all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationAgreement, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Agreement. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on such Seller’s ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions transaction contemplated by this Agreement as or on the Property. This Agreement is a valid, binding and enforceable agreement against such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection accordance with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.its terms;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Capital Properties Iv)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation and, approvalssubject to Section 8.2.4, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
(d) Immediately prior 6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller's knowledge, any other possessory interests of any person;
6.1.3 Seller is not a "foreign person," as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.4 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller's current insurance policy(ies) to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.6 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date; and
6.1.7 To the knowledge of Seller, the Rent Roll (as updated pursuant to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of Section 5.2.10) is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (VMS National Properties Joint Venture)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Each Seller represents and warrants to Purchaser, with respect to itself and such Seller’s Property, the Company and Opco following (collectively, “Sellers’ Representations”) as of the Initial Effective Date, and, subject to the terms of Section 4.1(a), as of the Closing Date and each Option Closing Date thatDate, provided, however, that following the Closing, Purchaser’s remedies in the instance that any of Sellers’ Representations are untrue, are limited to those set forth in Section 14.16:
(a) All consentsEach Seller is organized, approvals, authorizations validly existing and orders necessary for in good standing under the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, laws of the applicable Redeemed Opco LLC Interests jurisdiction of its formation.
(b) Subject to be sold Section 7.5 and Section 14.15, each Seller, acting through any of its duly empowered and authorized officers or cancelled by such Seller hereundermembers, has or at the Closing will have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and Agreement, to sell, assign, transfer execute and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed documents and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests instruments required of such Seller hereunder herein, and to perform its obligations hereunder; and no consent of any of Seller’s shareholders, equityholders, partners, directors, officers or members is required to so empower or authorize such Seller. Subject to Section 7.5 and Section 14.15 and the compliance by such Seller with all terms and conditions of the provisions of this Agreement Mortgage Loan Documents, the execution, delivery and the consummation compliance with or fulfillment of the transactions contemplated herein terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any its Property is otherwise bound.
(c) Subject to Section 7.5 and Section 14.15 and except with respect to the applicable Mortgage Lender’s Approvals, each Seller has all necessary approvals to execute and deliver this Agreement and perform its obligations hereunder, and no other authorization or approvals of its properties; except, governmental bodies will be necessary in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of order to such enable Seller to consummate enter into or comply with the transactions contemplated by terms of this Agreement.
(d) Immediately prior Subject to Section 14.15, this Agreement and the other documents to be executed by each Seller hereunder, upon execution and delivery or cancellationthereof by such Seller, as the case may bewill have been duly entered into by such Seller, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold constitute legal, valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability binding obligations of such Seller to consummate the transactions contemplated by this AgreementSeller.
(e) Such There are no material leases, licenses, occupancy agreements or tenancies for any space at the Properties other than those set forth on Schedule 12.1(e) attached hereto. Seller has made available to Purchaser true, correct and complete copies of the Leases set forth on such Schedule 12.1(e) other than any modifications to any such Lease which do not alter any of the material terms, provisions, rights or obligations thereunder, including without limitation, the lease term, rental payments, renewal rights, purchase options, rights of first offer/refusal, co-tenancy rights, “going dark rights”, termination rights, landlord obligations with respect to tenant improvements (either individually other than any such landlord obligations which have been satisfied by Seller) (any such modification, a “Non-Material Lease Amendment”), each of which shall be deemed to be included in the definition of “Leases” hereunder at Closing. Each such Lease (i) constitutes the entire agreement between Seller and the tenant thereunder (excluding any Non-Material Lease Amendment which may exist), (ii) is in full force and effect, and (iii) has not been amended, supplemented or otherwise modified except by any amendment, supplement or modification thereto set forth on Schedule 12.1(e) or by any Non-Material Lease Amendment.
(f) Attached hereto as Schedule 12.1(f) is a list of rent rolls for each together of the Properties as of August 31, 2011 (each, a “Rent Roll” and collectively, the “Rent Rolls”). The Rent Rolls are the rent rolls Sellers utilize in connection with its advisors) has such knowledge operation and experience in financial or business matters that it is capable of evaluating the merits and risks management of the transactions contemplated Properties and are materially accurate, as of its date, with respect to the information contained therein.
(g) Attached hereto as Schedule 12.1(g) is a list, as of the Effective Date (to be updated by this AgreementSellers as of the Closing Date), of (x) the security deposits (whether in the form of cash, letter of credit or otherwise) under the Leases being held by the Sellers, including whether any such security deposit is being held in the form of a letter of credit, which is true and correct in all material respects and (y) the prepaid rents under the Leases. Such Seller has had the opportunity to ask questions and receive answers concerning complied with the terms and conditions of the transactions contemplated by this Agreement Leases and all applicable laws regarding the handling and application of such security deposits.
(h) Except as set forth on Schedule 12.1(h), no Seller is a party to any brokerage commission agreement or leasing commission agreement for which Purchaser will be liable after Closing and Purchaser shall not be liable with respect to any material Leasing Costs with respect to such brokerage commission agreements or leasing commission agreements other than the amounts set forth on Schedule 12.1(h).
(i) To Seller’s knowledge, except as set forth on Schedule 12.1(i), (i) no Seller has requested. Such delivered written notice to any tenants, or received written notices alleging any landlord default, under Leases for space of at least 5,000 square feet and with remaining terms of at least one year (“Material Leases”) for any defaults under their respective Material Leases that remain uncured or alleging any uncured defaults under any of the Material Leases, (ii) there exists no default (or event, which with the passage of time or giving of notice would constitute a default) by any Seller under the Material Leases, a material default by any tenant thereunder and (iii) to Seller has not received a written notice from a tenant under a Material Lease that such tenant has an offset, counterclaim, or defense to its obligation to pay rent in accordance with the terms of such Material Lease;
(j) Attached hereto as Schedule 12.1(j) is a copy of an aging report dated as of the Effective Date with respect to each Property (each a “Delinquency Report”) used by Sellers in connection with Sellers’ operation of the Properties.
(k) No Seller has granted any options, rights of first refusal or similar rights to purchase its Property or any portion thereof, except as provided in Section 7.5 hereof, as otherwise contained in the Leases or the Pro Formas provided to Purchaser or as set forth in the Walmart Agreement.
(l) Except as set forth on Schedule 12.1(l), no Seller has received all information that it believes is necessary any written notice from any governmental body or appropriate in connection agency of any material violation or alleged material violation of any zoning ordinance, land use law, building code or other law with the transactions contemplated by this Agreement. Such Seller acknowledges that it respect to such Seller’s Property which has not relied upon been dismissed or cured.
(m) Except as set forth on Schedule 12.1(m), no Seller has received any express written notice from any governmental body or implied representations or warranties agency of any nature pending or threatened material condemnation proceeding against such Seller’s Property or any formal notice of condemnation with respect to such Seller’s Property.
(n) To Seller’s Knowledge, Seller has provided or made available to Purchaser true, correct and complete copies of all environmental reports in its possession, provided, however, with respect to the DIM Properties, Seller has provided only true, correct and complete copies of reports ordered by or on behalf of Seller during EQY’s period of ownership of DIM (the Company “Provided Reports”). Other than as disclosed in the Provided Reports or Opcoin any environmental report ordered or obtained by or on behalf of Purchaser (all such reports, whether collectively with the Provided Reports, the “Existing Reports”), no Seller has received any written notice from any governmental body or not agency of any material violation or alleged material violation of any applicable law with respect to Hazardous Materials (as hereinafter defined) on such representationsSeller’s Property. “Hazardous Materials” shall mean any hazardous or toxic materials, warranties substances or statements were made wastes, such as (a) substances defined as “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic waste,” “toxic pollutant,” “contaminant,” “toxic substances” or words of similar import in writing the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (“RCRA”), the Superfund Amendment and Reauthorization Act (commonly known as “▇▇▇▇”), and/or the Hazardous Materials Transportation Act (49 USC Section 1801, et seq.), or orallyany other federal, state or county legislation or ordinances applicable, as any of such acts, legislation or ordinances are amended from time to; (b) any materials, substances or wastes which are toxic, ignitable, corrosive or reactive and which are regulated by any state or local governmental authority or any agency of the United States of America; and (c) asbestos, petroleum and petroleum based products, urea formaldehyde foam insulation, polychlorinated biphenyls (PCBs), and freon and other chlorofluorocarbons (collectively, “Environmental Laws”). To Seller’s Knowledge, except as expressly set forth for disclosed in the benefit Existing Reports, as of the Sellers in this AgreementEffective Date there is no material violation of any Environmental Laws at or relating to the Properties.
Appears in 1 contract
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Such Seller is validly existing and in good standing under the laws of the state of its formation set forth on the Seller Information Schedule; and, approvalssubject to Section 8.2.4, authorizations and orders necessary has or at the Closing shall have the entity power and authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect affect on such Seller's ability to consummate the ability of transaction contemplated by this Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against such Seller in accordance with its terms;
6.1.2 Such Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except as set forth on the Seller Information Schedule and for (a) any actions by such Seller to consummate evict Tenants under its Leases, or (b) any matter covered by such Seller's current insurance policy(ies), to such Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against such Seller's Property;
6.1.4 To such Seller's knowledge, such Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting such Seller's Property; and
6.1.5 To such Seller's knowledge, such Seller has not received any written notice of any material default by such Seller under any of its Property Contracts that will not be terminated on the transactions contemplated by this AgreementClosing Date.
6.1.6 To such Seller's knowledge (di) Immediately prior the applicable Rent Roll (as updated pursuant to Section 5.2.10) is accurate in all material respects, and (ii) no persons are in possession or occupancy, or have the delivery right to possession or cancellation, as the case may beoccupancy, of the Property or any part thereof, except pursuant to Leases.
6.1.7 To such Seller's knowledge, the applicable Redeemed Opco LLC Interests Property Contracts List (as updated pursuant to Opco at Section 5.2.11) is accurate and complete in all material respects.
6.1.8 To such Seller's knowledge, the Initial Closing applicable Permits (other than the Excluded Permits) are in full force and effect.
6.1.9 To such Seller's knowledge: (A) no hazardous or Option Closing, as applicable, toxic materials or other substances regulated by applicable federal or state environmental laws are stored by such Seller holds and will hold valid title to the on, in or under its Property in quantities which violate applicable Redeemed Opco LLC Interestslaws governing such materials or substances, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (iB) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would its Property is not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of used by such Seller to consummate for the transactions contemplated by this Agreementstorage, treatment, generation or manufacture of any hazardous or toxic materials or other substances in a manner which would constitute a violation of applicable federal or state environmental laws.
(e) Such Seller (either individually or each together 6.1.10 To such Seller's knowledge, the financial reports provided to Purchaser with respect to operation of its advisors) has such knowledge and experience Property are accurate in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementmaterial respects.
Appears in 1 contract
Sources: Purchase and Sale Contract (Davidson Diversified Real Estate Ii Limited Partnership)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has, approvalsor at the Closing shall have, authorizations the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller’s ability to convey the Property or which would materially adversely affect the Property after the Closing;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects;
6.1.6 To Seller’s knowledge, the Initial Closing or Option ClosingProperty Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.7 To Seller’s knowledge, as applicable, such Seller holds is the owner of the Fixtures and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests Tangible Personal Property free and clear of all liens, any liens or encumbrances, equities or claimsother than the Deed of Trust;
6.1.8 To Seller’s knowledge, except for Seller has not received any encumbrances (i) imposed under applicable securities laws written notice that the Property, or the organizational documents of use thereof, violates any covenants or restrictions encumbering the Company or Opco or (ii) as would not reasonably be expected toProperty, individually or in which violation remains uncured; and
6.1.9 To Seller’s knowledge, the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in current financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made statements prepared by or on behalf of Seller (but not by any Consultant or other third-party) are used in the Company ordinary course of Seller’s business and are not inaccurate or Opco, whether or not misleading in any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementmaterial respects.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Properties Iv)
Seller’s Representations. In connection with Seller hereby makes the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants following representations to the Company and Opco as of the Initial Closing Date and each Option Closing Date thatBuyer:
(a) All consentsIt is a corporation, approvalsduly organized, authorizations validly existing, and orders in good standing under the laws of Delaware and is duly authorized and qualified to conduct business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary for the execution and delivery by such Seller where failure to so qualify would affect its performance of its obligations under this Agreement;
(b) It has all requisite power and authority to conduct its business and execute and deliver this Agreement and perform its obligations hereunder in accordance with its terms;
(c) The execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate action and for this Agreement constitutes the redemption legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms;
(d) Neither the execution, delivery or cancellation, as the case may be, performance of the Agreement conflicts with, or results in a violation or breach of the terms, conditions or provisions of, or constitutes a default under, the organizational documents of Seller or any material agreement, contract, indenture or other instrument under which Seller or its assets are bound, nor violates or conflicts with any Applicable Law or any judgment, decree, order, writ, injunction or award applicable Redeemed Opco LLC Interests to be sold Seller;
(e) Seller is not in violation of any Applicable Law or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected toGovernmental Authorization which violations, individually or in the aggregate, have a material adverse effect on would affect its performance of its obligations under this Agreement;
(f) Seller is the ability holder of such Seller all Governmental Authorizations required to consummate the transactions operate and conduct its business now and as contemplated by this Agreement; and such Seller has full right, power and authority other than Governmental Authorizations which will be timely obtained in accordance with the terms of this Agreement, if any;
(g) there is no pending controversy, legal action, arbitration proceeding, administrative proceeding or investigation instituted, or to enter into this Agreement and to sellthe best of Seller’s knowledge threatened, assignagainst or affecting, transfer and deliver or cancel, as the case may bethat could affect, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorizedlegality, executed validity and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions enforceability of this Agreement or the performance by Seller of its obligations hereunder in any material respect, nor does Seller know of any basis for any such controversy, action, proceeding or investigation; and
(h) Seller is financially solvent, able to pay its debts as they mature, and the consummation of the transactions contemplated herein upon project financing, will not possess sufficient capital to complete its obligations under this Agreement; and
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) has carefully studied and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by reviewed this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may beincluding all Attachment, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds Appendices and will hold valid title to the applicable Redeemed Opco LLC InterestsExhibits attached hereto, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of has become familiar with all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementprovisions.
Appears in 1 contract
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “ Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to any approvals required from Lender for the Loan Assumption and Release, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller’s ability to convey the Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects; and
6.1.6 To Seller’s knowledge, the Initial Closing or Option Closing, Property Contracts List (as applicable, such Seller holds and will hold valid title updated pursuant to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of Section 5.2.10) is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Growth Fund Xxii)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to Section 8.2.4 and any approvals required from Lender for the Loan Assumption and Release, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a "foreign person," as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property which will adversely impact Seller's ability to convey the Property;
6.1.4 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.6 To Seller's knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects;
6.1.7 To Seller's knowledge, the Initial Closing or Option ClosingProperty Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.8 To Seller's knowledge, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claimsis not a Prohibited Person; and
6.1.9 To Seller's knowledge, except for any encumbrances (i) imposed under applicable securities laws third party persons who hold a direct or the organizational documents indirect ownership interests in Seller, none of the Company Seller's affiliates or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have parent entities is a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementProhibited Person.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Davidson Growth Plus Lp)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation; and, authorizations subject to Section 8.2.4, has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
(d) Immediately prior 6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller's knowledge, any other possessory interests of any person;
6.1.3 Seller is not a "foreign person," as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.4 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.6 To Seller's knowledge, neither the Property nor Seller's operation of the applicable Redeemed Opco LLC Interests to Opco at Property is in material violation of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Initial Property;
6.1.7 To Seller's knowledge, (a) Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC InterestsDate, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (ib) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon given any express or implied representations or warranties written notice of any nature made material default by a vendor to such vendor under any Property Contracts that will not be terminated on the Closing Date;
6.1.8 To the knowledge of Seller, the Rent Roll (as updated pursuant to Section 5.2.10) is accurate in all material respects; and
6.1.9 To Seller's knowledge: (a) no hazardous or on behalf of toxic materials or other substances regulated by applicable federal or state environmental laws are stored by Seller on, in or under the Company Property in quantities which violate applicable laws governing such materials or Opcosubstances, whether or and (b) the Property is not any such representations, warranties or statements were made in writing or orally, except as expressly set forth used by Seller for the benefit storage, treatment, generation or manufacture of the Sellers any hazardous or toxic materials or other substances in this Agreementa manner which would constitute a violation of applicable federal or state environmental laws.
Appears in 1 contract
Sources: Purchase and Sale Contract (VMS National Properties Joint Venture)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has or at the Closing shall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. This Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.4 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.5 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.6 To Seller's knowledge, the Rent Roll (das updated pursuant to Section 5.2.10) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
6.1.7 To Seller's knowledge, the Property Contracts List (eas updated pursuant to Section 5.2.11) Such Seller (either individually or each together with its advisors) has such knowledge and experience is accurate in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementmaterial respects.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties 2)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has, approvalsor at the Closing shall have, authorizations the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller’s ability to convey the Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is accurate in all material respects;
6.1.6 To Seller’s knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects; and.
6.1.7 To Seller’s knowledge, (da) Immediately prior any Materials delivered to Purchaser and that have been prepared by Seller (as opposed to Materials prepared by any third parties) are the same Materials that are used by Seller in the ordinary course of Seller’s business with respect to the delivery or cancellation, as the case may be, operation of the applicable Redeemed Opco LLC Interests Property and (b) with respect to Opco at the Initial Closing or Option Closing, as applicableMaterials prepared by any third parties that are delivered by Seller to Purchaser, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected toMaterial(s), individually or in the aggregateand collectively, have a material adverse effect the ability of such Seller are that which they purport to consummate the transactions contemplated by this Agreementbe.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Properties Iv)
Seller’s Representations. In connection with Except in all cases for any fact, information or condition disclosed in the transactions contemplated herebyExisting Title Policy and the Title Commitment (and within any document referenced therein), each the Permitted Exceptions, the Property Contracts delivered to Purchaser, or of the Sellerswhich Purchaser otherwise has actual knowledge, severally and not jointly, Seller represents and warrants (as qualified by (i) any schedules to this Contract and (ii) pursuant to Section 13.31, any permitted amendments or supplements to such schedules and/or any new schedules to this Contract) to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies prior to Closing if any such Seller’s Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1, provided, further however, that if untruthfulness of any such representation or warranty is caused, directly or indirectly, by any default by Seller under this Contract, Purchaser shall be entitled to exercise its rights and each Option Closing Date thatremedies under Section 10.2 below:
6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the Transaction Information Schedule; has the entity power and authority to sell and convey the Transferred REIT Interests (aUTI) All consentsand to execute the documents to be executed by Seller and has taken all corporate, approvalspartnership, authorizations limited liability company or equivalent entity actions and orders obtained all necessary consents required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. Neither the execution and delivery of this Contract nor the compliance with or fulfillment of the terms and conditions hereof, will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement contract or other material agreement or instrument to which such Seller is or the Upper Tier Entities or the Property Owner are a party or by which such Seller is or the Upper Tier Entities or the Property Owner are otherwise bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute law or any orderlegal requirement, rule which conflict, breach, default or regulation of any court violation would have an adverse effect on Seller’s ability to consummate the transaction contemplated by this Contract or on the Transferred REIT Interests (UTI), or the Upper Tier Entities or the Property Owner, or would be binding upon Purchaser or the Upper Tier Entities or the Property Owner following Closing. This Contract is a valid and binding agreement, enforceable against Seller in accordance with its terms.
6.1.2 Seller is not a “foreign person” as that term is used and defined in Code Section 1445.
6.1.3 There are no actions, proceedings, litigation or governmental agency investigations or body having jurisdiction over such Seller condemnation actions either pending or, to Seller’s knowledge, threatened in writing against either of the Upper Tier Entities or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not Property Owner which could reasonably be expected to, individually to adversely impact Seller’s ability to convey the Transferred REIT Interests (UTI) to Purchaser.
6.1.4 There are no Property Contracts to which Seller or in either Upper Tier Entity is a party other than the aggregate, have a material adverse effect REIT Servicing Agreement and the ability iStar Service Agreement. Seller has delivered or made available to Purchaser true and complete copy of such Seller to consummate the transactions contemplated by this REIT Servicing Agreement and the iStar Service Agreement.
(d) Immediately prior to 6.1.5 The Upper Tier Entities and the delivery or cancellation, as Property Owner are validly existing and in good standing under the case may be, laws of the applicable Redeemed Opco LLC state of their formation.
6.1.6 The Common REIT Interests to Opco at constitute 100% of the Initial Closing or Option Closingoutstanding Class A Common Shares in the REIT. Seller owns 100% of the Transferred REIT Interests (UTI), as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, pledges, security interests, pledge, charges, Claims or other encumbrances. The Transferred REIT Interests (UTI) have been duly authorized, are validly issued, fully paid and non-assessable. The Transferred REIT Interests (iStar) and the Preferred REIT Interests constitute the only other outstanding equity interests in the REIT. Neither the Common REIT Interests nor the Preferred REIT Interests were issued in violation of the preemptive rights of any person or entity or any agreement or laws by which the REIT at the time of issuance was bound. The REIT owns 100% of the limited liability company interests in the Mezzanine Company, free and clear of all liens, pledges, security interests, pledge, charges, Claims or other encumbrances, equities other than Entity Exceptions. The limited liability company interests in the Mezzanine Company were not issued in violation of the preemptive rights of any person or claimsentity or any agreement or laws by which the Mezzanine Company at the time of issuance was bound. There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character, in each case of or issued by Seller or either Upper Tier Entity, relating to the capital stock of the REIT or limited liability company interests in the Mezzanine Company or the Property Owner or obligating Seller, the REIT or the Mezzanine Company or the Property Owner, as applicable, to issue or sell any shares of capital stock of, or any other ownership interest in, the REIT or any other Target. None of the REIT, the Mezzanine Company or the Property Owner have any outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings that will remain in effect with respect to the voting or transfer of any of the Transferred REIT Interests (UTI) or any of the limited liability company interests in the Mezzanine Company after Closing, except for any encumbrances (i) imposed under applicable securities laws or with respect to the organizational documents REIT, the REIT Declaration of Trust, REIT Certificate, the Company or Opco or (ii) as would not reasonably be expected to, individually or in REIT Servicing Agreement and the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this iStar Service Agreement.
(e) Such 6.1.7 Neither of the Upper Tier Entities nor the Property Owner has any employees.
6.1.8 The execution, delivery and performance by Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this AgreementContract do not and will not (1) violate any applicable code, resolution, law, statute, regulation, ordinance, judgment, rule, decree or order binding on Seller, or either Upper Tier Entity or Property Owner or (2) result in the creation of any lien, charge or encumbrance (other than this Contract) upon the Interests.
6.1.9 Neither Upper Tier Entity has any assets or indebtedness, liabilities, obligations, guarantees, indemnities, losses, costs and expenses of any kind and description, whether accrued, absolute or contingent, direct or indirect, or matured or unmatured, other than (i) the Mezzanine Company Interests and the Property Owner Interests, as applicable, (ii) the Permitted Exceptions, and (iii) current obligations with respect to 2021 Delaware and Maryland franchise Taxes. Such Seller Since their respective inception, (a) the Mezzanine Company has had the opportunity to ask questions and receive answers concerning the terms and conditions not owned any assets, operated any business other than its direct ownership of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary Property Owner Interests, or appropriate in connection with been a party to any contract or agreement other than the transactions contemplated by this Property Owner LLC Agreement. Such Seller acknowledges that it , and (b) the REIT has not relied upon owned any express assets, operated any business other than its direct ownership of the Mezzanine Company Interests, or implied representations been a party to any contract or warranties agreement other than the Mezzanine Company LLC Agreement and the REIT Servicing Agreement, (c) the Property Owner has not owned any assets other than the Property, operated any business other than its direct ownership of the Property, or been a party to any contract or agreement other than the Property Contracts, and (d) the Property Owner has no liabilities, obligations, guaranties, indemnities, losses, costs and expenses of any nature made by or on behalf of the Company or Opcokind and description, whether accrued, absolute or not contingent, direct or indirect, or matured or unmatured, other than (i) the Existing Mortgage Financing, (ii) the Property Contracts, (iii) the Lease, (iv) the Permitted Exceptions, (v) general organizational expenses incurred in the ordinary course (i.e. franchise taxes in all applicable jurisdictions), and (vi) any such representationsliabilities, warranties obligations, guaranties, indemnities, losses, costs or statements were expenses for which (y) have been discharged, or (z) Tenant is obligated to pay directly or reimburse Property Owner pursuant to the Lease.
6.1.10 None of Seller or the Upper Tier Entities has (1) made in writing or orally, except as expressly set forth a general assignment for the benefit of creditors, (2) filed any voluntary petition in bankruptcy or suffered the Sellers filing of any involuntary petition by their respective creditors, (3) suffered the appointment of a receiver to take possession of all or substantially all of their respective assets, (4) suffered the attachment or other judicial seizure of all, or substantially all, of their respective assets or (5) made an offer of settlement, extension, or composition to their respective creditors generally.
6.1.11 The REIT Certificate, the REIT Declaration of Trust, the Mezzanine Company Certificate, the Mezzanine Company LLC Agreement, the Property Owner Certificate and the Property Owner LLC Agreement (each as the same have been amended to date) are in full force and effect and true and complete copies thereof have been made available by Seller to Purchaser. Such organizational documents contain the entire agreement between the parties thereto.
6.1.12 None of Seller or the Upper Tier Entities is a Prohibited Person. To Seller’s knowledge, none of its investors, affiliates or brokers or other agents (if any), acting or benefiting in any capacity in connection with this AgreementContract is a Prohibited Person. The assets Seller will transfer to Purchaser under this Contract are not the property of, or beneficially owned, directly or indirectly, by a Prohibited Person. The assets Seller will transfer to Purchaser under this Contract are not the proceeds of specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7).
Appears in 1 contract
Sources: Purchase and Sale Contract (Universal Technical Institute Inc)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials or which is otherwise actually known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has the entity power and authority to execute this Contract, approvalsand has the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and has taken, authorizations and orders necessary as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement Contract and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller (and approved in writing by Purchaser) to evict Tenants under the Leases, or (b) any matter covered by Seller’s current insurance policy(ies), there are no actions, proceedings, litigation or, either pending or, to Seller’s knowledge, threatened in writing against the Property and/or Seller except as disclosed on Schedule 6.1.3 (as updated pursuant to Section 5.2.17). Seller has not received written notice of any proceedings or governmental investigations, either pending or, to Seller’s knowledge, threatened in writing against the Property and/or Seller except as disclosed on Schedule 6.1.3 (as updated pursuant to Section 5.2.17). There are no condemnation actions pending or, to Seller’s knowledge, threatened in writing against the Property and/or Seller except as disclosed on Schedule 6.1.3 (as updated pursuant to Section 5.2.17).
(d) Immediately prior to the delivery or cancellation, as the case may be, 6.1.4 Seller has not received any written notice of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such any material default that remains uncured by Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances under (i) imposed under applicable securities laws or the organizational documents any of the Company or Opco or Property Contracts, (ii) any of the Leases, (iii) the Common Area Improvements Construction Contract, and/or (iv) the Suite 1230 Construction Contract. Seller has not received any written notice of any default that remains uncured by Seller under the Ground Lease or the Project REA.
6.1.5 To Seller’s knowledge, the rent roll attached hereto as would not reasonably be expected to, individually or Schedule 6.1.5 (the “Rent Roll”) (as updated pursuant to Section 5.2.10) is accurate in all material respects and is consistent with the rent roll maintained by Seller in the aggregate, have a material adverse effect the ability normal course of such Seller to consummate the transactions contemplated by this Agreementbusiness.
6.1.6 To Seller’s knowledge, the list of all current Property Contracts attached hereto as Schedule 6.1.6 (ethe “Property Contracts List”) Such (as updated pursuant to Section 5.2.11) is accurate in all material respects. Seller has not delivered a written notice of default to the counterparty under any Property Contract, with respect to any default that remains uncured except as set forth on Schedule 6.1.6(B) (either individually as updated pursuant to Section 5.2.17).
6.1.7 Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or each together with its advisors) municipal law, ordinance, order, regulation or requirement affecting the Property.
6.1.8 The Ground Lease has such not been modified or amended by Seller except as set forth on the Title Commitment.
6.1.9 The Project REA has not been modified or amended except as set forth on the Title Commitment.
6.1.10 No pending or, to the knowledge and experience in financial or business matters that it is capable of evaluating Seller, threatened litigation exists which if determined adversely would restrain the merits and risks consummation of the transactions contemplated by this Agreement. Such Contract.
6.1.11 None of Seller, nor persons controlling or controlled by Seller, nor, to Seller’s knowledge, investors in Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions (excluding any public shareholders), are Prohibited Persons.
6.1.12 To Seller’s knowledge, none of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary its brokers or appropriate other agents (if any), acting or benefiting in any capacity in connection with this Contract is a Prohibited Person.
6.1.13 The Property was not purchased by Seller utilizing proceeds of specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7).
6.1.14 Schedule 6.1.14(i) (as updated pursuant to Section 5.2.10) lists all Leases and all amendments and modifications to the transactions contemplated by this AgreementLeases. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or To Seller’s knowledge, all Leases set forth on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made Schedule 6.1.14(i) (as updated pursuant to Section 5.2.10) are in writing or orallyfull force and effect. To Seller’s knowledge, except as expressly set forth on Schedule 6.1.14(ii) (as updated pursuant to Section 5.2.17), none of the Tenants is in monetary or material non-monetary default under its Lease.
6.1.15 No Tenant is currently auditing operating expense reimbursements under its Lease, and no Tenant has given written notice to Seller that it intends to audit operating expense reimbursements under its Lease except as set forth on Schedule 6.1.15 (as updated pursuant to Section 5.2.17).
6.1.16 Schedule 6.1.16 (as updated pursuant to Section 5.2.17) accurately lists all Tenant Security Deposits and the forms thereof.
6.1.17 Seller has not received from any Tenant any prepaid base rent under its Lease more than thirty (30) days in advance of its due date, except as set forth on Schedule 6.1.17 (as updated pursuant to Section 5.2.17).
6.1.18 To Seller’s knowledge, Schedule 5.4.6.4 (as updated pursuant to Section 5.2.17) accurately sets forth all unpaid Tenant Inducement Costs and Leasing Commissions with respect to the Leases.
6.1.19 Seller has not granted to any Tenant or third party any right or option to purchase the Property or any portion thereof except for the benefit contractual rights granted pursuant to this Contract.
6.1.20 Seller has not submitted any pending appeals of Property Taxes.
6.1.21 Seller has not submitted any applications to rezone or entitle the Property or to modify the current zoning or entitlements for the Property that remain pending (provided that the foregoing shall not include any permits obtained by Seller in connection with work to be performed under the Common Area Improvements Construction Contract or the Suite 1230 Construction Contract).
6.1.22 Seller has paid all amounts due and payable under the Common Area Improvements Construction Contract and the Suite 1230 Construction Contract as of the Sellers Effective Date, which amounts paid as of the Effective Date are $61,967.03 for the Common Area Improvements Construction Contract and $0.00 for the Suite 1230 Construction Contract.
6.1.23 To Seller’s knowledge, the parking ledger attached hereto as Schedule 6.1.23 is accurate in this Agreementall material respects as of the Effective Date and is consistent with the parking ledger maintained by Seller in the normal course of business. To Seller’s knowledge, Seller has provided Purchaser with copies of all of the parking license agreements that are in Seller’s possession or control.
6.1.24 To Seller’s knowledge, Seller has paid, or caused to be paid, all parking taxes due and payable as of the Effective Date to the City and County of San Francisco with respect to the parking at the Property.
Appears in 1 contract
Sources: Purchase and Sale Contract (Black Creek Diversified Property Fund Inc.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1. Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2. Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3. Except for (da) Immediately any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), both of which shall be disclosed to Purchaser in the Materials or otherwise, to Seller's knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller's ability to convey the Property;
6.1.4. Except with respect to matters concerning the pools at the Property disclosed to Purchaser prior to the delivery Effective Date, to Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or cancellationmunicipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.5. To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.6. To Seller's knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is accurate in all material respects;
6.1.7. To Seller's knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.8. Seller has not, and, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances shall not have (iA) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have made a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the Sellers filing of any involuntary petition by Seller’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, which remains pending as of such time, (D) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, which remains pending as of such time, (E) admitted in this Agreementwriting its inability to pay its debts as they come due, or (F) made an offer of settlement, extension or composition to its creditors generally;
6.1.9. To Seller’s knowledge, there are no condemnation proceedings pending or threatened that would result in the taking of any portion of the Property. To Seller’s knowledge, Seller has not received any written notice of any special assessment proceedings affecting the Property;
6.1.10. Seller is not a Prohibited Person;
6.1.11. To Seller’s knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, none of Seller’s affiliates or parent entities is a Prohibited Person; and
6.1.12. To Seller’s knowledge, except for third party persons who hold direct or indirect ownership interests in Seller, the Property is not the property of or beneficially owned by a Prohibited Person.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Growth Fund Xxii)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Buyer that:: ------------------------
(a) All consentsSeller is a corporation duly organized and legally existing under the laws of its state of incorporation. Seller is qualified to do business and is in good standing, approvalsor will be at Closing, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except in each state in which Properties are located where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability laws of such Seller state require a corporation owning the Properties located in such state to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority qualify to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunderdo business.
(b) This Seller has full power to enter this Agreement and perform its obligations hereunder and has been duly authorized, executed taken all proper action to enter this Agreement and delivered by such Sellerperform its obligations hereunder.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder Seller's execution and the compliance by such Seller with all of the provisions delivery of this Agreement and Agreement, the consummation of the transactions transaction contemplated herein hereby, and Seller's compliance with the terms hereof, will not (i) conflict with or result in a breach or violation of default under any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such the Properties are bound that would be material to the transaction contemplated hereby. Seller's execution and delivery of this Agreement will not violate any order, writ, injunction, decree, statute, rule, or regulation applicable to Seller is bound or to which any the Properties that would be material to the transaction contemplated hereby, except the following:
(i) Any consents to transfer or waivers of the property or assets of such Seller is subject, preferential rights to purchase that must be obtained from third parties;
(ii) violate any provision Compliance with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of organizational documents of such Seller, if applicable or 1976 (the "▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act");
(iii) violate any applicable statute or any order, rule or regulation of any court or Any approval required from a governmental agency or body having jurisdiction over such Seller or any of its properties; except, entity that is the lessor under a lease included in the case of clauses Properties (i), (iior that administers such lease for such lessor) and that is customarily obtained post-closing; and
(iii), as would not reasonably be expected to, individually iv) Any maintenance of uniform interest provision contained in any operating agreement or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementother agreement.
(d) Immediately prior to This Agreement constitutes the delivery or cancellationlegal, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interestsvalid, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear binding obligation of all liensSeller, encumbrances, equities or claimsenforceable according to its terms, except as limited by bankruptcy or other laws applicable generally to creditor's rights and as limited by general equitable principles. The Assignment and ▇▇▇▇ of Sale provided for in Section 11.(a)(i) hereof, and any encumbrances (i) imposed under other documentation provided for herein to be executed by Seller, will, when executed and delivered, constitute the legal, valid, and binding obligations of Seller, enforceable according to their terms, except as limited by bankruptcy or other laws applicable securities laws or the organizational documents of the Company or Opco or (ii) generally to creditor's rights and as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated limited by this Agreementgeneral equitable principles.
(e) Such Except as disclosed on Exhibit "D," there are no pending suits, actions, or other proceedings filed by parties other than Seller, and to which Seller is a party, that materially affect the Properties (either individually including, without limitation, any actions challenging or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks pertaining to Seller's title to any of the transactions contemplated by Properties) or that affect the execution and delivery of this Agreement. Such Seller has had Agreement or the opportunity to ask questions and receive answers concerning the terms and conditions consummation of the transactions transaction contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementhereby.
Appears in 1 contract
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise disclosed in writing to Purchaser prior to Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date; provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1 Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a "foreign person," as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, of the applicable Redeemed Opco LLC Interests or (b) any matter covered by Seller's current insurance policy(ies), which shall all be disclosed to Opco at the Initial Closing or Option ClosingPurchaser, as applicableto Seller's knowledge, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the organizational documents of the Company or Opco or Property, and (ii) as would Seller has not reasonably be expected toreceived any written notices from any governmental or quasi-governmental authority alleging a violation of law, individually or in including any environmental law, on the aggregateProperty, have a which has not been cured;
6.1.4 To Seller's knowledge, Seller has not received any written notice of any material adverse effect the ability of such default by Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks under any of the transactions contemplated by this Agreement. Such Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller's knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is accurate in all material respects;
6.1.6 To Seller's knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.7 To Seller’s knowledge, the copies of Leases provided or made available to Purchaser pursuant to Sections 3.5.1 and 3.5.2 are true, correct and complete in all material respects;
6.1.8 Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions not: (i) commenced a case under Title 11 of the transactions contemplated by this Agreement United States Code, as such Seller has requested. Such Seller has received all information that it believes is necessary now constituted or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon hereafter amended, or under any express other applicable federal or implied representations state bankruptcy law or warranties other similar law; (ii) appointed a trustee or receiver of any nature property interest; (iii) made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth an assignment for the benefit of creditors; (iv) been subject to an attachment, execution or other judicial seizure of a substantial property interest; (v) taken, failed to take or submitted to any action indicating an inability to meet its financial obligations as they accrue; or (vi) dissolved or liquidated; and
6.1.9 Seller has not entered into any other contracts for the Sellers sale of the Property, nor do there exist any rights of first refusal or options to purchase the Property; and.
6.1.10 To Seller’s knowledge, (i) there are no leasing commissions or other fees due any real estate brokers, nor will any become due, in this Agreementconnection with any tenant leases, and (ii) Seller has received no notices alleging any defaults or breaches by Seller, as landlord, under any Lease, or by a contracting party against Seller under any Service Contract, which, in either case, remain uncured.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties 3)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, 3.1 The Seller represents and warrants to the Company Purchaser on the date hereof and Opco as of on each day up to and including the Initial Closing Date and each Option Closing Completion Date that:
(a) All consents, approvals, authorizations it is duly incorporated and orders necessary for validly existing under the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, laws of the applicable Redeemed Opco LLC Interests State of Israel, with power and authority to be sold or cancelled by such Seller hereunder, have been obtained, except where carry on its business as now being conducted;
(b) it has the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full rightrequisite capacity, power and authority to enter into and to perform this Agreement. All corporate action on the part of the Seller necessary for the authorisation and execution of this Agreement, the authorisation, sale of the Sale Shares and the performance of all of the Seller’s obligations hereunder has been taken; and
(c) this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests all other documents to be redeemed entered into in connection with this Agreement will, when executed, constitute binding obligations on the Seller enforceable in accordance with its terms;
3.2 The signature of and the compliance with the terms of this Agreement does not and will not conflict with or cancelled by such Seller hereunder.constitute a default under any provision of:
(a) the constitutional and corporate documents of the Seller;
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any orderlaw, rule or regulation of any court government applicable to the Seller;
(c) any contract, agreement, indenture, mortgage, instrument, lease, license, arrangement, or governmental agency undertaking of any nature, written or body having jurisdiction over such Seller oral, of the Seller; or
(d) any lien, order, judgement, decree or regulation or any other restriction of its properties; exceptany kind by which the Seller is bound.
3.3 Except as set forth in Section 1.3 above, no consents, approvals, registrations, authorisations or permits or waivers from governmental or non-governmental administrative agencies or from any other person or entity, in each case, required by law, contract, or regulation nor otherwise are required to be obtained by the case Seller in connection with the execution and performance of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to 3.4 The Sale Shares are fully paid up and the delivery or cancellation, as Seller is the case may be, sole legal and beneficial owner of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing Sale Shares.
3.5 There are no Encumbrances on, over or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for affecting any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementSale Shares.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Elron Electronic Industries LTD /Ny/)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Each Seller represents and warrants to Purchaser with respect to itself and its Property, the Company and Opco following (collectively, “Sellers’ Representations”) as of the Initial Closing Effective Date and each Option as of the Closing Date thatDate, provided, however, that Purchaser’s remedies in the instance that any of Sellers’ Representations are known to Purchaser to be untrue or incorrect as of the Closing Date, are limited to those set forth in Article XII:
(a) All consentsSuch Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Agreement, authorizations and orders necessary is qualified to transact business in the state in which its applicable Property is located; and, has or at the Closing will have the entity power and authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken, as applicable, all corporate or equivalent entity actions required for the execution and delivery by such Seller of this Agreement by it and for the redemption and delivery or cancellation, as the case may be, consummation by it of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Such Seller has all necessary approvals to execute and deliver this Agreement has been duly authorizedand perform its obligations hereunder, executed and delivered by to such Seller’s knowledge, no other authorization or approvals, whether of governmental bodies or otherwise, will be necessary in order to enable such Seller to enter into or comply with the terms of this Agreement.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder This Agreement and the compliance other documents to be executed by such Seller with all hereunder, upon execution and delivery thereof by such Seller, will have been duly entered into by such Seller, and will constitute legal, valid and binding obligations of the provisions of such Seller. To such Seller’s knowledge, neither this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with nor anything provided to be done under this Agreement violates or result in a breach or violation of shall violate any of the terms or provisions ofcontract, or constitute a default underdocument, any material indentureunderstanding, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller it is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementbound.
(d) Immediately prior to Such Seller is a “United States person” within the delivery or cancellationmeaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of 1986, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementamended.
(e) Such The Leases provided to Purchaser by such Seller (either individually or each together with its advisors) has such knowledge are true and experience correct copies in financial or business matters that it is capable of evaluating the merits and risks all material respects of the transactions contemplated Leases between such Seller and the tenants of such Leases as they appear in Sellers’ files, including any and all amendments, renewals and extensions thereof. The Schedule of Leases provided to Purchaser by such Seller on the date hereof is true and correct in all material respects and lists all Leases as to its Property as of the Effective Date. Seller has not received notice of any material defaults from any tenant under its Lease in the last twelve (12) months preceding the Effective Date and no tenants under the Leases are delinquent in the payment of rent except as set forth in the Notice of Lease Defaults provided to Purchaser by such Seller on the date hereof.
(f) The Rent Roll as to its Property provided to Purchaser by such Seller on the date hereof is true and correct in all material respects.
(g) Other than as set forth in the Notice of Material Litigation provided to Purchaser by Sellers on the date hereof, there are (i) no actions, suits, arbitrations, claims, governmental proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending, or to Sellers’ knowledge threatened in writing, against any Seller that would affect any Seller's ability to perform its obligations under this Agreement. Such , (ii) no judicial, administrative or other adversarial suit, action or governmental proceeding pending against any Seller has had or any Property, which will be binding against Purchaser or any Property after the opportunity Closing, (iii) no material litigation pending with respect to ask questions such Seller’s Property not covered by insurance and receive answers concerning (iv) no pending, or to Sellers’ knowledge threatened in writing, litigation involving such Seller’s Property or such Seller exists which if determined adversely would restrain or prevent the terms and conditions consummation of the transactions contemplated by this Agreement or would declare illegal, invalid or non-binding any of such Seller’s obligations or covenants to Purchaser pursuant to this Agreement or any of the Closing Documents.
(h) Other than as set forth in the Notice of Violations provided to Purchaser by Sellers on the date hereof, to such Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, such Seller has requested. Such received no written notice from any governmental body or agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to such Seller’s Property, which violation or alleged violation has not been corrected.
(i) To such Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, such Seller has received no written notice from any governmental body or agency of any pending or threatened condemnation proceeding against such Seller’s Property or any formal notice of condemnation with respect to such Seller’s Property, other than as set forth on Schedule 13.1(i).
(j) To such Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, such Seller has not received any written notice from any property owner’s association (or shopping center association), tenant, governmental authority or other third party of any violation or alleged violation of any covenants, conditions, restrictions, easements or declarations governing such Seller’s Property, which violation or alleged violation has not been corrected.
(k) To such Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, such Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to (i) Hazardous Materials on such Seller’s Property or (ii) other environmental conditions concerning such Seller’s Property.
(l) Such Seller (which for this purpose includes its partners, members, principal stockholders and any other constituent entities (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/enforcement/ofac/sdn/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (ii) is currently in compliance with and will at all information that it believes is necessary or appropriate times during the term of this Agreement (including any extension thereof) remain in connection compliance with the transactions contemplated regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
(m) There are no employees who are employed by this Agreementsuch Seller or any property manager engaged by such Seller in the operation, management or maintenance of such Seller’s Property whose employment will continue after Closing. Such On and after the Closing, there will be no obligations concerning any pre-Closing employees of such Seller, nor will there be any property management agreement which will be binding on Purchaser or such Seller’s Property.
(n) To such Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, such Seller acknowledges that it has not relied upon received any express written notices of default with respect to its obligations or implied representations or warranties of liabilities under any nature made by or on behalf of the Company Service Agreements.
(o) To Wendover Village II Seller’s knowledge, during the eighteen (18) month period prior to the Effective Date, Wendover Village II Seller has not received any written notices of violation, non-compliance or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit breach of the Sellers in this Wendover ▇▇▇▇▇▇▇▇▇▇ Notice and/or the Wendover Brownfields Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1 Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, subject to any approvals required from Lender for the Loan Assumption and Release, has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller’s ability to convey the Property or the value, use or operation of the applicable Redeemed Opco LLC Interests Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts and HAP Tenant Based Voucher Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects;
6.1.6 To Seller’s knowledge, the Initial Closing or Option ClosingProperty Contracts List is accurate in all material respects;
6.1.7 To Seller’s knowledge, as applicablethere exists no material default under the Assumed Loan Documents;
6.1.8 To Seller’s knowledge, such Seller holds and will hold valid title has delivered to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear Purchaser copies of all liensHAP Tenant Based Voucher Contracts affecting the Property;
6.1.9 To Seller’s knowledge, encumbrancesSeller has delivered to Purchaser copies of all Utility Contracts affecting the Property;
6.1.10 To Seller’s knowledge, equities there exist no material default under the Assumed Loan Documents;
6.1.11 The financial statements delivered or claimsmade available to Purchaser are the financial statements used by Seller in the day to day management and operation of the Property;
6.1.12 Seller has delivered or made available to Purchaser true and correct copies of the Materials, Leases, Property Contracts, HAP Tenant Based Voucher Contracts and Assumed Loan Documents which Seller has in its possession or control;
6.1.13 Seller is not a Prohibited Person;
6.1.14 To Seller’s knowledge, except for third-party persons who hold direct or indirect ownership interests in Seller, none of Seller’s affiliates or parent entities is a Prohibited Person;
6.1.15 To Seller’s knowledge, except for third-party persons who hold direct or indirect ownership interests in Seller, the Property is not the property of or beneficially owned by a Prohibited Person;
6.1.16 To Seller’s knowledge, except for third-party persons who hold direct or indirect ownership interests in Seller, the Property is not the proceeds of specified unlawful activity as defined by 18 U.S.C. §1956(c)(7);
6.1.17 To Seller’s knowledge: (A) no hazardous or toxic materials or other substances regulated by applicable federal or state environmental laws are stored by Seller on, in or under the Property in quantities which violate applicable laws governing such materials or substances, and (B) the Property is not used by Seller for the storage, treatment, generation or manufacture of any encumbrances (i) imposed under hazardous or toxic materials or other substances in a manner which would constitute a violation of applicable securities laws federal or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected tostate environmental laws; and
6.1.18 To Seller’s knowledge, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it Sell has not relied upon received written notice from any express or implied representations or warranties governmental agency of any nature made by uncured material violation of any federal, state, county or on behalf of municipal law, ordinance, order, regulation or requirement affecting the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this AgreementProperty.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Fund Xvii)
Seller’s Representations. In connection with order to induce Sonic and Merger Sub to enter into and consummate this Agreement, the transactions contemplated herebySeller and Company represent, each of the Sellersjointly and severally, severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date thatfollows:
(a) All consentsschedule 4.1
(a) contains a complete and accurate list for each of the Company and the TK Subsidiary (collectively the “TK Companies”) of its name, approvalsits jurisdiction of incorporation and other jurisdictions in which it is authorized to do business. Each TK Company is a corporation duly organized, authorizations validly existing, and orders necessary for in good standing under the execution laws of its jurisdiction of incorporation, with full corporate power and delivery authority to conduct business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under Applicable Contracts. Each TK Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, require such qualification, except where the failure to so qualify or be in good standing would not have a material adverse effect on the applicable TK Company. Seller has delivered to Sonic copies of the Organizational Documents of each TK Company, as currently in effect;
(b) this Agreement and, upon execution by the Seller the Employment Agreement will, constitute legal, valid, and for binding obligations of Seller and the redemption Company, enforceable against Seller and delivery or cancellationthe Company in accordance with their terms. Each of Seller and the Company, as the case may be, has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to execute and deliver the Escrow Agreement, the Employment Agreement and the Seller’s Releases (collectively, the “Seller’s Closing Documents”) and to perform his or its obligations under this Agreement and the Seller’s Closing Documents;
(c) neither the execution and delivery of this Agreement nor the consummation or performance of any of the applicable Redeemed Opco LLC Interests Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of any of the TK Companies, or (B) any resolution adopted by the board of directors or the stockholders of any TK Company;
(ii) contravene, conflict with, or result in a violation of, or give any U.S. Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which any TK Company or the Seller, or any of the assets owned or used by any TK Company, may be subject;
(iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any U.S. Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by any TK Company or any U.S. Governmental Authorization that otherwise relates to the business of, or any of the assets owned or used by, any TK Company;
(iv) cause any of the assets owned by any TK Company to be reassessed or revalued by any U.S. taxing authority or other U.S. Governmental Body;
(v) contravene, conflict with, or result in a violation or breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; or
(vi) result in the imposition or creation of any Encumbrance upon or with respect to any of the assets owned or used by any TK Company;
(d) the authorized equity securities of the Company consist of 5,000,000 shares of common stock, par value $0.01 per share, of which 2,500,000 shares are issued and outstanding and constitute the Shares. Seller is and will be on the Closing Date the sole record and beneficial owner and holder of the Shares, free and clear of all Encumbrances (other than pursuant to this Agreement). All of the outstanding equity securities of the TK Subsidiary are owned of record and beneficially by the Company, free and clear of all Encumbrances. No legend or other reference to any purported Encumbrance appears upon any certificate representing equity securities of any TK Company, except legends required by or reciting Legal Requirements. All of the outstanding equity securities of each TK Company have been duly authorized and validly issued and are fully paid and nonassessable. There are no Contracts relating to the issuance, sale, or transfer of any equity securities or other securities of any TK Company (other than pursuant to this Agreement). None of the outstanding equity securities of any TK Company was issued in violation of the Securities Act or any other Legal Requirement. No TK Company owns, or has any Contract to acquire, any equity securities or other securities of any Person (other than TK Subsidiary) or any direct or indirect equity or ownership interest in any other business;
(e) the March 31 Financial Statements were prepared in good faith, consistent with past practices and, while Seller disclaims any representation that such financial statements conform to GAAP, such financial statements, to Seller’s Knowledge, include all short term and long term assets and liabilities on the balance sheet and all material revenue, costs and expenses on the statements of profit and loss and statement of cash flows;
(f) the books of account, stock record books, and other material records of the TK Companies, all of which have been made available to Sonic, are complete and correct in all material respects. At the Closing, all of those books and records will be in the possession of the TK Companies;
(g) Schedule 4.1(g) contains a complete and accurate list of all Assets of the TK Companies. The TK Companies own all such Assets (whether real, personal, or mixed and whether tangible or intangible) that they purport to own, including all of the properties and assets reflected in the March 31 Financial Statements (except for personal property sold since the date of the March 31 Financial Statements in the Ordinary Course of Business), and all of the Assets purchased or otherwise acquired by the TK Companies from the date of the March 31 Financial Statements to the date hereof are listed in Schedule 4.1(g);
(h) The Remediation Equipment owned by the Company has been field tested with positive results. As of the date of last use, it was in good operating condition and repair, and was adequate for the uses to which it was being put. The Remediation Equipment is currently being used for a project in Australia, and is subject to an Australian company’s right to purchase.
(i) the TK Companies have filed or caused to be filed (on a timely basis since August 31, 1999) all tax returns that are or were required to be filed by or with respect to any of them, either separately or as a member of a group of corporations, pursuant to applicable Legal Requirements. Seller has delivered to Sonic all such tax returns filed since August 31, 1999. The TK Companies have paid, or made provision for the payment of, all Taxes that have or may have become due pursuant to those tax returns or otherwise, or pursuant to any assessment received by Seller or any TK Company. All tax returns filed by (or that include on a consolidated basis) any TK Company are true, correct, and complete. No TK Company is, or within the five-year period preceding the Closing Date has been, an “S” corporation. During the consistency period (as defined in Section 338(h)(4) of the IRC with respect to the sale of the Shares to Sonic), no TK Company or target affiliate (as defined in Section 338(h)(6) of the IRC with respect to the sale of the Shares to Sonic) has sold or cancelled will sell any property or assets to Sonic or to any member of the affiliated group (as defined in Section 338(h)(5) of the IRC) that includes Sonic;
(j) since March 31, 2005, there has not been any material adverse change in the business, operations, properties or assets, or financial condition of any TK Company, and no event has occurred or circumstance exists that may result in such a material adverse change;
(k) there are no pension, welfare or other benefit plans, including plans under ERISA, of a TK Company, except for the Company’s 401(k) plan and money purchase pension plan, copies of which have been delivered to Sonic. The Company is under no obligation and is subject to no liability, whether or not contingent, with respect to such plans except reasonable administration obligations;
(l) Company holds all licences and permits, including the Operating Authorities described in Schedule 4.1(l), required for carrying on the Business in the manner in which it has been and is being carried on and all such licences and permits and Operating Authorities are in good standing and all necessary consents to the assignment of the Operating Authorities has been obtained;
(m) except as disclosed in Schedule 4.1(m):
(i) to the Seller’s Knowledge, the Company has not used any of its Facilities, or permitted them to be used, to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce, remediate or process Hazardous Substances nor otherwise conducted any Hazardous Activity, except in compliance with Legal Requirements, including Environmental Laws and Occupational Safety and Health Laws,
(ii) to the Seller’s Knowledge, the conduct of the Business and the use of the Remediation Equipment by the TK Companies is, and at all times has, complied with all Environmental Laws, Occupational Safety and Health Laws and other material Legal Requirements,
(iii) to the Seller’s Knowledge, none of the TK Companies or the Business, Assets or Facilities of the TK Companies are subject to any Environment, Health and Safety Liabilities and no such liabilities are pending or Threatened,
(iv) Neither the Seller nor any TK Company has received any actual or Threatened order, notice or other communication from any Person, including any Governmental Authority or client in connection with the Business, of any actual or potential violation or failure to comply with any Environmental Law Occupational Safety and Health Law or other material Legal Requirement or of any actual or Threatened obligation to undertake or bear the cost of any Environmental, Health and Safety Liabilities with respect to any Facility, from the use of the Remediation Equipment or otherwise from the conduct of the Business,
(v) the Seller has made available to Sonic all notices filed under applicable Environmental Law or Occupational Safety and Health Laws, judgment, decree, order, injunction, rule, statute or regulation indicating past or present Hazardous Activity,
(n) Schedule 4.1(n) lists all of the Applicable Contracts of the TK Companies. Each such contract is, as of the date hereof, and will continue to be after the Closing, a legal, valid, binding obligation, enforceable against, and in full force and effect against the Company and, to Seller’s knowledge, all the other parties thereto on identical terms following the Closing. There is no breach, violation or default by any TK Company and no event (including, without limitation, the consummation of the Contemplated Transactions) which, with notice or lapse of time or both, would (i) constitute a breach, violation or default by such Seller hereunderTK Company under any such Applicable Contract or (ii) give rise to any lien or right of termination, modification, cancellation, prepayment, suspension, limitation, revocation or acceleration against such TK Company under, any such Applicable Contract. To the Seller’s Knowledge, no other party to any of such Applicable Contracts is in arrears in respect of the performance or satisfaction of the terms and conditions on its part to be performed or satisfied under any of such Applicable Contracts, no waiver or indulgence has been granted by any of the parties thereto and no party to any of such Applicable Contracts has repudiated any provision thereof;
(o) attached as Schedule 4.1(o) is a complete and accurate list of all employees of the TK Companies, together with particulars of the material terms and conditions of employment of such persons, and each employee has been, on the date hereof and will have been obtainedon the Closing Date, except where paid all wages, income and any other sums due and owing to it by TK Companies;
(p) Schedule 4.1(p) is a complete and accurate description of all insurance policies held by TK Companies and, to the failure Seller’s Knowledge, each insurance policy is in full force and effect and no TK Company is in default with respect to obtain the payment of premiums on any such consentpolicy and no claim is pending under any such policy;
(q) except as limited by the Mitsubishi and Collex licenses delivered to Sonic and referenced in Schedule 4.1(n), approvalSeller and the TK Companies collectively own or have the right to use pursuant to license, authorization sublicense, agreement or order would not reasonably be expected topermission all Intellectual Property, individually or in the aggregate, have a material adverse effect to the operation of the Business as currently conducted, and on Closing the Company will be the sole legal and beneficial owner of all such Intellectual Property. Each item of Intellectual Property owned or used by Seller and TK Company on the ability date hereof will be owned or available for use by Company on identical terms and conditions immediately subsequent to the Closing. Each of the Seller and each TK Company has taken all necessary action, and continues to do so, to maintain and protect each item of Intellectual Property that it owns or uses;
(r) to Seller’s Knowledge, neither the Seller nor any TK Company has interfered with, infringed upon or misappropriated any Intellectual Property rights of third parties. Neither Seller nor any TK Company has received any charge, complaint, claim, demand or notice alleging any such interference, infringement or misappropriation (including any claim that it must license or refrain from using any Intellectual Property rights of any third party). To Seller’s Knowledge, no third party has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller or any TK Company;
(s) Schedule 4.1(s) identifies each item of Intellectual Property owned by or licensed by the TK Companies, including each patent and each pending patent application which has been filed by the Seller and the TK Companies and all copyrights and trademarks of the Seller relating to consummate the transactions contemplated by this Agreement; Business and the Company and of the TK Companies. With respect to each patent, to Seller’s Knowledge, there is no legally sufficient basis for invalidating any claim therein and Seller is not aware of any substantial suggestion or assertion that any such claim is invalid or unenforceable. To Seller’s Knowledge, the patent applications identified on Schedule 4.1(s) hereto have been properly prepared and filed. Schedule 4.1(s) identifies each license, agreement and other permission that Seller and the TK Companies have granted to any third party with respect to any of its Intellectual Property. The Seller has full rightmade available to Sonic correct and complete copies of all registrations, power patent applications, licenses, agreements and authority permissions (as amended), identified in Schedule 4.1(s) hereto, and has made available to enter into this Agreement Sonic correct and complete copies of all other written documentation evidencing ownership and prosecution of each such item. With respect to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests each item of Intellectual Property required to be redeemed or cancelled by such Seller hereunder.identified in Schedule 4.1(s):
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; exceptrelevant TK Company possesses all right, title and interest in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellationitem, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liensany Encumbrance, encumbranceslicense or other restriction;
(ii) the item is not subject to any outstanding injunction, equities judgment, order, decree, ruling or claimscharge; and
(iii) except as set forth in any Applicable Contract delivered to Sonic, except Seller or such TK Company has never agreed to indemnify any Person for or against any encumbrances interference, infringement, misappropriation or other conflict with respect to the item;
(it) imposed under applicable securities laws neither the Seller nor any officer, director or the organizational documents employee of the Company or Opco any Related Party of the foregoing is indebted or (ii) as would not reasonably be expected to, individually or in under obligation to the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.Company on any account;
(eu) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.a
Appears in 1 contract
Sources: Merger Agreement (Sonic Environmental Solutions Inc/Can)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Date, as the case may be, that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption sale and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Purchased Equity Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has have full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Purchased Equity Interests to be redeemed or cancelled sold by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption sale of the applicable Redeemed Opco LLC Purchased Equity Interests of to be sold by such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material statute, indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, to have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Purchased Equity Interests to Opco the Company at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Purchased Equity Interests, and holds and will hold such applicable Redeemed Opco LLC Purchased Equity Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or laws, the organizational documents of the Company or Opco Definitive OpCo or (ii) as would not reasonably be expected to, individually or under any other agreement executed in connection with the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementReorganization Transactions.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or OpcoCompany, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Stock and Unit Purchase Agreement (Definitive Healthcare Corp.)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, 1.1 The Seller represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Purchaser that:
(a) All consentsThe Seller is the beneficial owner of the Lease and holds the right to transfer said Lease and to explore and develop the oil and gas deposits on the Lease;
(b) The Seller holds the Lease free and clear of all liens, approvalscharges and claims of others, authorizations and orders necessary the Seller has a free and unimpeded right of access to the Lease and has use of the Lease surface for the execution herein purposes;
(c) The Lease has been duly and delivery by such Seller validly located and recorded in proper fashion with the Railroad Commission of the State of Texas and is in good standing as of the date of this Agreement and for Agreement;
(d) There are no adverse claims or challenges against or to the redemption and delivery or cancellation, as the case may be, Seller’s ownership of the applicable Redeemed Opco LLC Interests Lease nor to be sold the knowledge of the Seller is there any basis therefore and there are no outstanding agreements or cancelled by such Seller hereunder, have been obtained, except where options to acquire or purchase the failure to obtain Lease or any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such portion thereof;
(e) The Seller has the full right, power authority and authority capacity to enter into this Agreement and to sell, assign, transfer and deliver without first obtaining the consent of any other person or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement body corporate and the consummation of the transactions transaction herein contemplated herein will not (i) conflict with or result in a any breach or violation of any of the terms covenants or provisions ofagreements contained in, or constitute a default under, or result in the creation of any material encumbrance under the provisions of any indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument whatsoever to which such the Seller is a party or by which such Seller he is bound or to which he is subject; and
(f) No proceedings are pending for, and the Seller is unaware of any basis for, the institution of any proceedings which could lead to the placing of either Seller in bankruptcy, or in any position similar to bankruptcy.
1.2 The representations and warranties of the property or assets Seller set out in paragraph 1.1 above form a part of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation this Agreement and are conditions upon which the Purchaser has relied in entering into this Agreement and shall survive the acquisition of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, interest in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in Lease by the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementPurchaser.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Oil and Gas Lease Purchase Agreement (Ark Development Inc)
Seller’s Representations. In connection with Except as disclosed to or known by Buyer prior to the transactions contemplated herebysatisfaction or waiver of the Feasibility Contingency, including in the books, records and documents made available to Buyer, or in the title report or any supplemental report or documents referenced therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the Sellersfollowing is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, severally to sell the Property, and to perform its obligations under the Agreement, and no further consent, waiver, approval or authorization is required from any person or entity to execute and perform under this Agreement; (b) The books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement comprise all material documents in Seller's possession or control regarding the operation and condition of the Property, are true, accurate and complete, and no other contracts or agreements exist that will be binding on Buyer after Closing; (c) Seller has not jointlyreceived any written notices that the Property or any business conducted thereon violate any applicable laws, regulations, codes and ordinances; (d) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after Closing; (e) There is no pending or threatened condemnation or similar proceedings affecting the Property; (f) Seller has paid (except to the extent prorated at Closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 29 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after Closing; (g) Seller has not granted any options nor obligated itself in any matter whatsoever to sell the Property or any portion thereof to any party other than Buyer; and (h) Neither Seller nor any of its respective partners, members, shareholders or other equity owners, is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute or executive order; and (h) the individual signing this Agreement on behalf of Seller represents and warrants to Buyer that he or she has the Company and Opco as of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement act on behalf of and to sell, assign, transfer bind Seller. For purposes hereof “Seller’s actual knowledge” shall mean and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior limited to the delivery current actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, without duty of inquiry or cancellation, as the case may be, imputation of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing knowledge. The named individual is acting for and on behalf of Seller and is in no manner expressly or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for impliedly making any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties in an individual capacity. The representations and warranties shall survive Closing for a period of six (6) months, and any nature made by action for breach of a representation or on behalf of the Company or Opcowarranty must be commenced, whether or not any if at all, within such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementsix (6) month period.”
Appears in 1 contract
Sources: Commercial & Investment Real Estate Purchase and Sale Agreement
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1.
6.1.1 Seller is validly existing and each Option in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has or at the Closing Date that:
(a) All consentsshall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, of or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the applicable Redeemed Opco LLC Interests Property, which will adversely impact Seller’s ability to Opco at convey the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claimsProperty;
6.1.4 To Seller’s knowledge, except for violations cured or remedied on or before the date hereof, as of the date of this Agreement, Seller has not received any encumbrances written notice from any governmental authority of any violation of any zoning law applicable to the property.
6.1.5 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.6 To Seller’s knowledge, the Rent Roll (ias updated pursuant to Section 5.2.10) imposed under is complete and accurate in all material respects;
6.1.7 To Seller’s knowledge, the Property Contracts List (as updated pursuant to Section 5.2.11) is complete and accurate in all material respects; and
6.1.8 Seller hereby discloses, and Purchaser acknowledges, that on or about September 1, 2014, a second-floor deck adjacent to one of the Tenant Units at the Property collapsed (the “Casualty”). Following the Casualty, and in accordance with direction given by the applicable securities governmental authorities, Seller engaged a third party engineering firm to conduct an inspection of all other decks at the Property. Pursuant to the results of such inspections, Seller has undertaken (and will complete prior to Closing) to rebuild the deck destroyed in the Casualty and to make repairs to 8 other decks at the Property (collectively, the “Deck Repairs”). The Deck Repairs shall be completed by Seller in accordance with all applicable laws and at or prior to Closing Seller shall deliver to Purchaser evidence that the Deck Repairs have passed inspection by Baltimore County. Seller hereby agrees to indemnify, hold harmless and, if requested by Purchaser (in Purchaser's sole discretion), defend (with counsel approved by Purchaser) Purchaser, together with Purchaser's affiliates, parent and subsidiary entities, successors, assigns, partners, managers, members, lenders, employees, officers, directors, trustees, shareholders, counsel, representatives, agents, and property manager (collectively, including Purchaser, “Purchaser's Indemnified Parties”), from and against any and all damages, mechanic's liens, materialmen's liens, liabilities, penalties, interest, losses, demands, actions, causes of action, claims (including, without limitation, claims by governmental authorities), costs and expenses (including reasonable attorneys' fees, including the cost of in-house counsel and appeals) arising from or related to the Casualty or the organizational documents Deck Repairs. Except for the Baltimore County Code of Enforcement Notice of Correction dated September 4, 2014, Seller has not received any written notice from any governmental authority requiring any specific changes or repairs to the Company or Opco or Property arising from the Casualty. The provisions of this Section shall survive Closing for a period of three (ii3) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementyears.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating 6.1.9 There are no collective bargaining agreements affecting Seller’s employees at the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this AgreementProperty.
Appears in 1 contract
Sources: Purchase and Sale Contract (National Property Investors 6)
Seller’s Representations. In connection Each Seller is acquiring the Purchaser Shares for its own account and not with the transactions contemplated herebya view to or for distributing or reselling such Purchaser Shares or any part thereof in violation of Securities Act or any applicable state securities law, each has no present intention of distributing any of such Purchaser Shares in violation of the Sellers, severally Securities Act or any applicable state securities law and not jointly, represents and warrants has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the Company and Opco as distribution of such Purchaser Shares in violation of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for Securities Act or any applicable state securities law. Each Seller is an “accredited investor” as that term is defined in Regulation D promulgated under the execution and delivery by such Securities Act. Each Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or understands that its investment in the aggregate, have Purchaser Shares involves a material adverse effect on the ability high degree of such risk. Each Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result is able to bear the economic risk of an investment in the Purchaser Shares including a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subjecttotal loss thereof, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or and business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller proposed investment in the Purchaser Shares and (iii) has had the an opportunity to ask questions of and receive answers from the officers of the Purchaser concerning the terms financial condition and conditions business of the transactions contemplated by this Agreement as such Purchaser and other matters related to an investment in the Purchaser Shares. Each Seller has requestedsought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Purchaser Shares. Such Each Seller has received all information understands that it believes is necessary (i) the Purchaser Shares may not be offered for sale, sold, assigned or appropriate transferred unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Purchaser Shares to be sold, assigned or transferred without such registration; (ii) any sale of the Purchaser Shares made in connection reliance on Rule 144 under the Securities Act may be made only in accordance with the transactions contemplated by this Agreement. Such Seller acknowledges that it has terms of Rule 144 under the Securities Act and further, if Rule 144 under the Securities Act is not relied upon applicable, any express or implied representations or warranties of any nature made by or on behalf resale of the Company Purchaser Shares under circumstances in which the Seller (or Opco, whether the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit rules and regulations of the Sellers in this AgreementSEC thereunder.
Appears in 1 contract
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition which is actually known by Purchaser prior to the transactions contemplated herebyClosing, each of the Sellers, severally and not jointly, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to any approvals required from Lender for the Loan Assumption and Release, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 As of the Effective Date, except for any actions by Seller to evict Tenants under the Leases, to Seller’s knowledge, there are no material legal actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property or against Seller and affecting the Property;
6.1.4 As of the Effective Date, to Seller’s knowledge, Seller has performed its obligations under the Property Contracts and has not received any written notice of any default by Seller under any of the Property Contracts that will not be terminated on the Closing Date;
6.1.5 Attached hereto as Schedule 6 are the rent roll and rent arrears report for the Property listing the move-in date, monthly base rent payable, lease expiration date, any past due and uncollected rent and unapplied security deposit for each Lease (collectively, the “Rent Roll”). To Seller’s knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is true, correct, complete and accurate in all material respects;
6.1.6 Attached hereto as Schedule 7 is a list of all current Property Contracts (the “Property Contracts List”). To Seller’s knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.7 To Seller’s knowledge, the Materials delivered to Purchaser and that have been prepared by Seller (as opposed to Materials prepared by any third parties) are true and correct in all material respects, and Seller has no actual knowledge that any Materials prepared by any third parties are substantially and materially erroneous or misleading. The operating statements for the Property that have been prepared by Seller and delivered to Purchaser are the operating statements used by Seller in the ordinary course of business with respect to the Property, and to Seller’s knowledge such operating statements are true and correct in all material respects;
6.1.8 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any threatened or uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.9 To Seller’s knowledge, the Assumed Loan Documents provided to Purchaser are true, correct and complete copies of the final executed Assumed Loan Documents. To Seller’s knowledge, Seller has performed its obligations under the Loan as of the Effective Date, has not received any written notice of any default by Seller under the Loan that remains uncured. To Seller’s knowledge, there are no circumstances that with the passing of time or the giving of notice would be a material default or an event of default under any of the Assumed Loan Documents;
6.1.10 To Seller’s knowledge, (a) no hazardous or toxic materials or other substances regulated by applicable federal or state environmental laws are stored by Seller, or have been located by Seller, on, in or under the Property in quantities which violate applicable laws governing such materials or substances and (b) the Property is not used by Seller for the storage, treatment, generation or manufacture of any hazardous or toxic materials or other substances in a manner which would constitute a violation of applicable federal or state environmental laws;
6.1.11 No bankruptcy, insolvency, rearrangement or similar action involving Seller, whether voluntary or involuntary, is pending, or to the knowledge of Seller, threatened. Seller will not be rendered insolvent by the completion of the transaction contemplated by this Agreement.; and
(d) Immediately prior to 6.1.12 To Seller’s knowledge, the delivery Fixtures and Personal Property are owned by Seller and are not encumbered by any liens or cancellationsecurity interests, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except other than for any encumbrances (i) imposed liens or security interests created under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementAssumed Loan Documents.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Fund Xix)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the "Seller's Representations") as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser's remedies if any such Seller's Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is duly organized, approvalsvalidly existing and in good standing under the laws of the state of its formation; and, authorizations subject to Section 8.2.4, has or at the Closing shall have the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller's ability of such Seller to consummate the transactions transaction contemplated by this AgreementContract or on the Property. Subject to Section 8.2.4, this Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller's knowledge, any other possessory interests of any person.
6.1.3 Seller is not a "foreign person," as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except for (da) Immediately prior any actions by Seller to evict Tenants under the Leases, or (b) any matter covered by Seller's current insurance policy(ies), to Seller's knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property or the Seller;
6.1.5 To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property; and
6.1.6 To Seller's knowledge, Seller has not received any written notice of any material default by Seller under any of the Property Contracts that will not be terminated on the Closing Date.
6.1.7 To the knowledge of Seller, the Rent Roll (as updated pursuant to Section 5.2.12) is accurate in all material respects.
6.1.8 To the knowledge of Seller, the Property Contracts List (as it may be updated up to Closing and subject to the delivery provisions of Section 7.1 herein) is accurate in all material respects. Notwithstanding the above representation, after Closing should Purchaser accept the benefits of goods or cancellationservices from a vendor that is not listed on the Property Contracts List, as the case may be, Purchaser shall have no claim for breach of the Seller's representations under Section 6.1 or Section 8.1 and Purchaser shall be deemed to have assumed all obligations and liabilities relating to any applicable Redeemed Opco LLC Interests contracts or goods or services provided.
6.1.9 All penalty amounts required to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title be paid by AIMCO pursuant to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, Consent Agreement have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementbeen satisfied.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (VMS National Properties Joint Venture)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Such Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and, approvalssubject to the receipt of all approvals required from the applicable Lender for the Loan Assumption and Release for such Seller’s Property, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect affect on such Seller’s ability to consummate the ability of transaction contemplated by this Contract or on the Properties. This Contract is a valid and binding agreement against such Seller in accordance with its terms;
6.1.2 Such Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellationevict Tenants under its Leases, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (iib) as would not reasonably be expected toany matter covered by such Seller’s current insurance policy(ies), individually to such Seller’s knowledge, there are no actions, proceedings, litigation or in the aggregategovernmental investigations or condemnation actions either pending or threatened against such Seller’s Property, which have a material adverse effect affect on the ability of Properties;
6.1.4 To such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as Seller’s knowledge, such Seller has requested. Such Seller has not received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties written notice of any nature made material default by or on behalf such Seller under any of its Property Contracts;
6.1.5 To such Seller’s knowledge, the applicable Rent Roll (for purposes of remaking Seller’s Representations as of the Company or OpcoClosing Date only, whether or not any as updated pursuant to Section 5.2.9) is accurate in all material respects; and
6.1.6 To such representationsSeller’s knowledge, warranties or statements were made in writing or orally, except the applicable Property Contracts List (for purposes of remaking Seller’s Representations as expressly set forth for the benefit of the Sellers Closing Date only, as updated pursuant to Section 5.2.10) is accurate in this Agreementall material respects.
Appears in 1 contract
Sources: Purchase and Sale Contract (Shelter Properties v Limited Partnership)
Seller’s Representations. In connection with Except in all cases for any fact, information or condition disclosed in the transactions contemplated herebyExisting Title Policy and the Title Commitment (and within any document referenced therein), each the Permitted Exceptions, the Property Contracts delivered to Purchaser, or of the Sellerswhich Purchaser otherwise has actual knowledge, severally and not jointly, Seller represents and warrants (as qualified by (i) any schedules to this Contract and (ii) pursuant to Section 13.31, any permitted amendments or supplements to such schedules and/or any new schedules to this Contract) to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies prior to Closing if any such Seller’s Representations are untrue as of the Closing Date are limited to those set forth in Section 8.1, provided, further however, that if untruthfulness of any such representation or warranty is caused, directly or indirectly, by any default by Seller under this Contract, Purchaser shall be entitled to exercise its rights and each Option Closing Date thatremedies under Section 10.2 below:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the Transaction Information Schedule; has the entity power and authority to sell and convey the iStar Member Interests and to execute the documents to be executed by Seller and has taken all corporate, approvalspartnership, authorizations limited liability company or equivalent entity actions and orders obtained all necessary consents required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. Neither the execution and delivery of this Contract nor the compliance with or fulfillment of the terms and conditions hereof, will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement contract or other material agreement or instrument to which such Seller is or the Property Owner are a party or by which such Seller is or the Property Owner are otherwise bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute law or any orderlegal requirement, rule which conflict, breach, default or regulation of any court violation would have an adverse effect on Seller’s ability to consummate the transaction contemplated by this Contract or on the iStar Member Interests, or the Property Owner, or would be binding upon Purchaser or the Property Owner following Closing. This Contract is a valid and binding agreement, enforceable against Seller in accordance with its terms.
6.1.2 Seller is not a “foreign person” as that term is used and defined in Code Section 1445.
6.1.3 There are no actions, proceedings, litigation or governmental agency investigations or body having jurisdiction over such Seller or any of its properties; exceptcondemnation actions either pending or, to Seller’s knowledge, threatened in writing against the case of clauses (i), (ii) and (iii), as would not Property Owner which could reasonably be expected to, individually or in to adversely impact Seller’s ability to convey the aggregate, have a material adverse effect the ability of such Seller iStar Member Interests to consummate the transactions contemplated by this AgreementPurchaser.
(d) Immediately prior 6.1.4 There are no Property Contracts to which Seller is a party.
6.1.5 The Property Owner is validly existing and in good standing under the delivery or cancellation, as the case may be, laws of the applicable Redeemed Opco LLC Interests to Opco at state of its formation.
6.1.6 Seller owns 100% of the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC iStar Member Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, pledges, security interests, pledge, charges, Claims or other encumbrances. The Existing UTI Member Interests constitute the only other outstanding equity interests in Property Owner. There are no outstanding or authorized options, equities warrants, convertible securities or claimsother rights, except for agreements, arrangements or commitments of any encumbrances (i) imposed under applicable securities laws character, in each case of or issued by Seller, relating to the limited liability company interests in Property Owner or obligating Seller or the organizational documents Property Owner, as applicable, to issue or sell any shares of capital stock of, or any other ownership interest in Property Owner. Property Owner does not have any outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings that will remain in effect with respect to the voting or transfer of any of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementiStar Member Interests after Closing.
(e) Such 6.1.7 Property Owner does not have any employees.
6.1.8 The execution, delivery and performance by Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this AgreementContract do not and will not (1) violate any applicable code, resolution, law, statute, regulation, ordinance, judgment, rule, decree or order binding on Seller or Property Owner or (2) result in the creation of any lien, charge or encumbrance (other than this Contract) upon the iStar Member Interests.
6.1.9 Since its inception, (a) Property Owner has not owned any assets other than the Property, operated any business other than its direct ownership of the Property, or been a party to any contract or agreement other than the Property Contracts, and (b) the Property Owner has no liabilities, obligations, guaranties, indemnities, losses, costs and expenses of any kind and description, whether accrued, absolute or contingent, direct or indirect, or matured or unmatured, other than (i) the Existing Mortgage Financing, (ii) the Property Contracts, (iii) the Lease, (iv) the Permitted Exceptions, (v) general organizational expenses incurred in the ordinary course (i.e. franchise taxes in all applicable jurisdictions), and (vi) any liabilities, obligations, guaranties, indemnities, losses, costs or expenses for which (y) have been discharged, or (z) Tenant is obligated to pay directly or reimburse Property Owner pursuant to the Lease.
6.1.10 Seller has not (1) made a general assignment for the benefit of creditors, (2) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors, (3) suffered the appointment of a receiver to take possession of all or substantially all of its assets, (4) suffered the attachment or other judicial seizure of all, or substantially all, of its assets or (5) made an offer of settlement, extension, or composition to its creditors generally.
6.1.11 The Property Owner Certificate and the Property Owner LLC Agreement (each as the same have been amended to date) are in full force and effect and true and complete copies thereof have been made available by Seller to Purchaser. Such organizational documents contain the entire agreement between the parties thereto.
6.1.12 Seller has had is not a Prohibited Person. To Seller’s knowledge, none of its investors, affiliates or brokers or other agents (if any), acting or benefiting in any capacity in connection with this Contract is a Prohibited Person. The assets Seller will transfer to Purchaser under this Contract are not the opportunity property of, or beneficially owned, directly or indirectly, by a Prohibited Person. The assets Seller will transfer to ask questions Purchaser under this Contract are not the proceeds of specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7).
6.1.13 [Omitted]
6.1.14 Except for the Broker, the fees and receive answers concerning expenses of which are the terms sole responsibility of, and conditions will be paid by, the Seller, no broker, investment banker, financial advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate expenses, in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied Contract based upon any express or implied representations or warranties of any nature arrangements made by or on behalf of Seller or the Company or Opco, whether or not any such representations, Property Owner. The representations and warranties or statements were made in writing or orally, except as expressly set forth for in Sections 6.1.1 (but only the benefit first sentence of Section 6.1.1), 6.1.8, 6.1.9, 6.1.12 and 6.1.14 are referred to herein as the Sellers in this Agreement“Fundamental Representations”.
Appears in 1 contract
Sources: Purchase and Sale Contract (Universal Technical Institute Inc)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller hereby represents and warrants to the Company and Opco Buyer, as of the Initial Closing Effective Date and each Option as of the Closing Date Date, that:
(a) All consentsOn the Closing Date, approvalsSeller shall convey the Property to Buyer by special warranty deed and provide a Title Policy insuring good and indefeasible title in fee simple to the Property in Buyer in accordance with the terms and conditions of this Agreement;
(b) To Seller’s knowledge, authorizations and orders necessary ▇▇▇▇▇▇ has received no notice of any condemnation or eminent domain proceedings, nor entered into negotiations for the execution and delivery by such sale of any of the Property in lieu of condemnation and, to the best of Seller’s knowledge, no condemnation or eminent domain proceedings or negotiations have been commenced or threatened in connection with the Property or any part thereof;
(c) Seller of has validly executed this Agreement and for the redemption and delivery or cancellation, as same constitutes the case may be, binding obligation of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this AgreementSeller; and such and
(d) Seller has full rightpower, power authority and authority capacity to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such carry out Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of ’s obligations under this Agreement and the consummation by Seller of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any sale of the terms or provisions Property is not in violation of, or in conflict with, nor does it constitute a default under, any material indentureterm or provision of Seller’s organizational documents, material mortgage, material deed or any of trust, material loan agreement or other material the terms of any agreement or instrument to which such Seller is a party or by which such Seller is bound may be bound, or to which of any applicable legal requirement or of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule judgment or regulation decree of any court court, arbitrator or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementauthority.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, the Permitted Exceptions, the Property Contracts, or the Materials (other than as set forth in Sections 6.1.5, 6.1.6 or 6.1.7), or which is otherwise known by Purchaser prior to the Closing, each of the SellersSeller, individually and severally with respect only to itself and not jointlyits Property, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Such Seller is validly existing and in good standing under the laws of the state of its formation set forth above; and, approvalssubject to Section 8.2.4 and the receipt of all approvals required from the applicable Lender for the Loan Assumption and Release for such Seller’s Property, authorizations has or at the Closing shall have the entity power and orders necessary authority to sell and convey its Property and to execute the documents to be executed by such Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on such Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid and binding agreement against such Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Such Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 To such Seller’s knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against such Seller’s Property, which will adversely impact the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicableProperty;
6.1.4 To such Seller’s knowledge, such Seller holds has not received any written notice of any material default by such Seller under any of its Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Materials delivered to Purchaser and will hold valid title that have been prepared by Seller (as opposed to Materials prepared by any third parties) are true and correct in all material respects.
6.1.6 To such Seller’s knowledge, the applicable Redeemed Opco LLC InterestsRent Roll (as updated pursuant to Section 5.2.9 is accurate in all material respects; and
6.1.7 To such Seller’s knowledge, and holds and will hold such the applicable Redeemed Opco LLC Interests free and clear of Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties 3)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions, severally and not jointlythe Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has, approvalsor at the Closing shall have, authorizations the entity power and orders necessary authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as default would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the affect on Seller’s ability of such Seller to consummate the transactions transaction contemplated by this Agreement.Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
(d) Immediately prior to 6.1.2 Seller is not a “foreign person,” as that term is used and defined in the delivery or cancellationInternal Revenue Code, Section 1445, as amended;
6.1.3 Except for (a) any actions by Seller to evict Tenants under the case may beLeases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property which will adversely impact Seller’s ability to convey the Property;
6.1.4 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the applicable Redeemed Opco LLC Interests Property Contracts that will not be terminated on the Closing Date;
6.1.5 To Seller’s knowledge, the Rent Roll (as updated pursuant to Opco at Section 5.2.9) is accurate in all material respects; and
6.1.6 To Seller’s knowledge, the Initial Closing or Option Closing, Property Contracts List (as applicable, such Seller holds and will hold valid title updated pursuant to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of Section 5.2.10) is accurate in all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreementrespects.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Properties Iv)
Seller’s Representations. In connection with Except, in all cases, for any fact, information or condition disclosed in the transactions contemplated herebyTitle Documents, each of the SellersPermitted Exceptions or the Materials, severally and not jointlyor which is otherwise known by Purchaser prior to the Closing, Seller represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date; provided that Purchaser’s remedies if any such Seller’s Representations are untrue as of the Closing Date and each Option Closing Date thatare limited to those set forth in Section 8.1:
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and at the Closing shall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or default would have a material adverse affect on Seller’s ability to consummate the transaction contemplated by this Contract or on the Property. This Contract is a valid and binding agreement against Seller in accordance with its terms;
6.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.3 There are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened in writing against the Property;
6.1.4 Seller has not received any written notice of any material default by Seller under the Lease;
6.1.5 The rent roll attached hereto as Schedule 6.1.5 (the “Rent Roll”) (as updated pursuant to Section 5.2.10) is accurate in all material respects;
6.1.6 Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.7 Seller owns good and marketable legal and beneficial fee simple title to the Property, free and clear of all liens and encumbrances except for the Permitted Exceptions and the Lease;
6.1.8 There are no parties in possession of any portion of the Property except Seller and Tenant under the Lease;
6.1.9 Except for the Lease, there are no leases, licenses, occupancy agreements or other similar agreements affecting the Property or granting any other person or entity the right to occupy or use the Property;
6.1.10 Seller has not granted to any person or entity any option or other right to purchase to the Property and no person or entity has any option or other right to purchase the Property;
6.1.11 Seller has no employees or other personnel employed at the Property;
6.1.12 Seller has not retained anyone to file notices of protest against, or to which commence actions to review, real property tax assessments against the Property;
6.1.13 To Seller’s knowledge, none of its investors, affiliates or brokers or other agents (if any), acting or benefiting in any capacity in connection with this Contract is a Prohibited Person; and
6.1.14 Seller is not and is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of the property or assets Employee Retirement Income Security Act of such Seller is subject1974, as amended (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i“ERISA”), (ii) and a “plan” within the meaning of Section 4975 of the Code or (iii)) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101, as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability modified by Section 3(42) of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may beERISA, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties employee benefit plan or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementplan.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Rodin Global Property Trust, Inc.)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, Seller represents and warrants to the Company and Opco Buyer as follows (“Seller’s Representations”):
6.1. Seller knows of the Initial Closing Date and each Option Closing Date that:
(a) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller no written notice of this Agreement and for the redemption and delivery any liens or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests assessments to be sold levied against the Property.
6.2. Seller knows of no written notice from any governmental agency of any violation of any statute, law, ordinance, or cancelled of any deed restriction, rule, or regulation with respect to the Property.
6.3. Seller is not a "foreign person" as that term is defined in IRC § 1445. At Closing, Seller will execute and deliver to Purchaser a certification of non-foreign status on a form required by such the IRS.
6.4. Seller hereunder, have been obtained, except where conveys the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or Property in the aggregatecondition, known or unknown, existing at the time of Closing, “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” Other than as set forth herein, Seller and Seller's agents have a material adverse effect on made no representations, warranties, or other agreements concerning matters relating to the ability of such Property. Seller and Seller's agents have made no agreement or promise to consummate alter, repair, or improve the transactions contemplated by this Agreement; and such Property.
6.5. Seller has full right, power and complete authority to enter into this Agreement and convey the Property in accordance with the terms hereof.
6.6. To Seller's knowledge, there is no condemnation, environmental, zoning, or similar proceeding existing or planned which could detrimentally affect the use, development, operation, or value of the Property that is undisclosed to sellPurchaser.
6.7. Seller has no knowledge of any actual or threatened claims under any insurance policy covering the Property or of any other actual or threatened third party claim against the Property.
6.8. Seller shall maintain the Property prior to Closing consistent with Seller’s current operating practices, assignand shall have done nothing to damage the reputation or suitability of the Property. Seller shall cause any existing or future leasehold interest in the Property and any service contracts or other agreements affecting the Property to terminate and vacate prior to Closing.
6.9. ▇▇▇▇▇▇ agrees to notify Purchaser promptly if Seller receives actual notice, transfer and deliver prior to Closing, of any event or cancelcondition that would result in making any previously disclosed material information relating to the Property substantially misleading or incorrect. Upon receipt of such notice, as Purchaser, in its absolute discretion, may terminate this Agreement by written notice to Seller, in which event Seller shall retain the case may be▇▇▇▇▇▇▇ Money and, upon such termination, the applicable Redeemed Opco LLC Interests Parties shall have no further obligations to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorizedclaims against each other under this Agreement, executed except for those rights, obligations, instructions, actions and delivered by such Seller.
(c) The redemption of claims that survive the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions termination of this Agreement prior to Closing.
6.10. Seller’s Representations are materially true and the consummation correct as of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of Effective Date and shall be continue to be materially true and correct thereafter and through the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orallyDate, except as expressly set forth for necessarily revised by any further disclosure or notification Seller is obligated to make under this Agreement after the benefit of the Sellers in this AgreementEffective Date and on or prior to Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Seller’s Representations. In connection with Each of the transactions contemplated hereby, Sellers (who makes the following representations only to the extent of the interests owned by each of the SellersSellers in the Leases) represents, severally warrants and not jointly, represents agrees to and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date with Buyer that:
(a) All consentsAs of the Closing, approvalsthe Leases are in full force and effect, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationSellers have, as the case may be, of the applicable Redeemed Opco LLC Interests Closing, fully complied with all of the terms and provisions thereof which they are obligated to perform for all periods up to the Closing. Sellers shall own or otherwise have the right to assign and convey or cause to be sold or cancelled by such Seller hereunderassigned and conveyed the Leases, have been obtainedall of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Buyer as follows:
(i) With respect to all of the Leases, except where the failure a net revenue interest to obtain any such consentBuyer of not less than 83.333%, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability prior to reservation of such Seller an overriding royalty equal to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, five percent (5%) of 8/8ths as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunderprovided for herein.
(b) This Agreement has been duly authorizedThere is no litigation or governmental investigation or proceeding pending or, executed and delivered by such Seller.
(c) The redemption to the knowledge of the applicable Redeemed Opco LLC Interests Sellers, threatened affecting the Leases or which would have the effect of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with restraining or result in a breach or violation of prohibiting any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(dc) Immediately prior This Agreement constitutes the valid and binding agreement of Sellers in accordance with its terms, and all instruments required hereunder to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco be executed by Sellers at the Initial Closing or Option Closingshall constitute valid and binding agreements of Sellers in accordance with their terms. The execution, as applicable, such Seller holds delivery and will hold valid title to the applicable Redeemed Opco LLC Interests, performance of this Agreement and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated hereby have been duly and validly authorized by this Agreement.all requisite action on the part of Sellers;
(d) This Agreement has been duly executed and delivered by Sellers and all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and delivered by Seller;
(e) Such Seller Sellers have incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which Buyer shall have any responsibility whatsoever;
(either individually f) Sellers shall not enter into any new agreements or each together commitments or incur, or agree to incur, any contractual obligation or liability (absolute or contingent) affecting or relating to any of the Leases which extend beyond the Closing except in connection with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks consummation of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement., without the written consent of Buyer; and
Appears in 1 contract
Seller’s Representations. In connection Except, in all cases, for any fact, information or condition disclosed in the Title Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Purchaser prior to the Closing, Seller, individually and severally with respect only to itself and the transactions contemplated hereby, each of the Sellers, severally and not jointlyProperty, represents and warrants to Purchaser the Company and Opco following (collectively, the “Seller’s Representations”) as of the Initial Effective Date and as of the Closing Date and each Option (provided that Purchaser’s remedies if Seller’s Representations are untrue as of the Closing Date that:are limited to those set forth in Section 8.1):
(a) All consents6.1.1 Seller is validly existing and in good standing under the laws of the state of Delaware; and has or at the Closing shall have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, approvalsall corporate, authorizations and orders necessary partnership, limited liability company or equivalent entity actions required for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellationContract, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not (i) conflict with with, or result in a breach or violation of any of of, the terms terms, conditions or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument contract to which such Seller is a party or by which such Seller is bound otherwise bound, which conflict, breach or default would affect Seller’s ability to which consummate the transaction contemplated by this Contract or the Property. This Contract is a valid, binding and enforceable agreement against Seller in accordance with its terms;
6.1.2 Other than the Leases, the Property is not subject to any written lease executed by Seller or, to Seller’s knowledge, any other possessory interests of any person;
6.1.3 Such Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except as set forth on the Seller Information Schedule and for (a) any actions by Seller to evict Tenants under its Leases, or (b) any matter covered by Seller’s current insurance policy(ies), to Seller’s knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property;
6.1.5 To Seller’s knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;
6.1.6 To Seller’s knowledge, Seller has not received any written notice of any material default by Seller under any of the property or assets of such Property Contracts that will not be terminated on the Closing Date;
6.1.7 To Seller’s knowledge, the Rent Roll (as updated pursuant to Section 5.2.13) is accurate in all material respects;
6.1.8 To Seller’s knowledge, Seller is subjectnot in default under the Property Contract and no other party is in default thereunder;
6.1.9 To Seller’s knowledge, (ii) violate there are no leasing or other commissions due, nor will any provision of organizational documents of such Sellerbecome due, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express Lease, and no understanding or implied representations or warranties agreement with any party exists as to payment of any nature made by leasing commissions or on behalf fees regarding future Leases or as to the procuring of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orallyTenants;
6.1.10 To Seller’s knowledge, except as expressly set forth for disclosed in the benefit Materials, no Tenants have asserted nor are there any defenses or offsets to rent accruing after the Closing Date. To Seller’s knowledge, except as disclosed in the Materials, Seller has not received any notice of any default or breach that remains uncured on the Sellers part of Seller under any Lease, nor to Seller’s knowledge, does there exist any such default or breach that remains uncured on the part of Seller;
6.1.11 Seller is not a Prohibited Person;
6.1.12 To Seller’s knowledge, none of its investors, affiliates or brokers or other agents (if any), acting or benefiting in any capacity in connection with this AgreementContract is a Prohibited Person; and
6.1.13 To Seller’s knowledge (a) all obligations of AIMCO under the Consent Agreement as it relates to the Property have been timely complied with by AIMCO and AIMCO is not in default under the Consent Agreement as it relates to the Property, (b) Seller has provided to Purchaser a certification report that the Property has been determined to be Lead-Based Paint Free Housing as defined in such certification report, and (c) no action is required under the Consent Agreement by Seller to remediate or ▇▇▇▇▇ any lead-based paint condition at the Property.
Appears in 1 contract
Sources: Purchase and Sale Contract (Consolidated Capital Institutional Properties)
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, 1.1 The Seller represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date Purchaser that:
(a) All consents, approvals, authorizations and orders necessary for The Seller is the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, beneficial owner of the applicable Redeemed Opco LLC Interests domain names and holds the right to be sold transfer said domain names and establish websites for each one and links from one site to another where indicated;
(b) The Seller holds the Domain names free and clear of all liens, charges and claims of others.;
(c) There are no adverse claims or cancelled by such challenges against or to the Seller’s ownership of the domain names nor to the knowledge of the Seller hereunder, have been obtained, except where is there any basis therefore and there are no outstanding agreements or options to acquire or purchase the failure to obtain names or any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such portion thereof;
(d) The Seller has the full right, power authority and authority capacity to enter into this Agreement and to sell, assign, transfer and deliver without first obtaining the consent of any other person or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement body corporate and the consummation of the transactions transaction herein contemplated herein will not (i) conflict with or result in a any breach or violation of any of the terms covenants or provisions ofagreements contained in, or constitute a default under, or result in the creation of any material encumbrance under the provisions of any indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument whatsoever to which such the Seller is a party or by which such Seller he is bound or to which he is subject; and
(f) No proceedings are pending for, and the Seller is unaware of any basis for, the institution of any proceedings which could lead to the placing of either Seller in bankruptcy, or in any position similar to bankruptcy.
1.2 The representations and warranties of the property or assets Seller set out in paragraph 1.1 above form a part of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation this Agreement and are conditions upon which the Purchaser has relied in entering into this Agreement and shall survive the acquisition of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, interest in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in domain names by the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this AgreementPurchaser.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds and will hold valid title to the applicable Redeemed Opco LLC Interests, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of all liens, encumbrances, equities or claims, except for any encumbrances (i) imposed under applicable securities laws or the organizational documents of the Company or Opco or (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreement.
Appears in 1 contract
Seller’s Representations. In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, SELLER represents and warrants to the Company and Opco as of the Initial Closing Date and each Option Closing Date PURCHASER that:
: (aA) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement and for the redemption and delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to be sold or cancelled by such Seller hereunder, have been obtained, except where the failure to obtain any such consent, approval, authorization or order would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the transactions contemplated by this Agreement; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver or cancel, as the case may be, the applicable Redeemed Opco LLC Interests to be redeemed or cancelled by such Seller hereunder.
(b) This Agreement has been duly authorized, executed and delivered by such Seller.
(c) The redemption of the applicable Redeemed Opco LLC Interests of such Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, material mortgage, material deed of trust, material loan agreement or other material agreement or instrument to which such Seller if SELLER is a party or by which such Seller formed entity, SELLER is bound or in good standing and has the power to which any sell the business and Assets as provided for herein; (B) SELLER is the owner of the property or assets of such Seller is subject, (ii) violate any provision of organizational documents of such Seller, if applicable or (iii) violate any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or any of its properties; except, in the case of clauses (i), (ii) and (iii), as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(d) Immediately prior to the delivery or cancellation, as the case may be, of the applicable Redeemed Opco LLC Interests to Opco at the Initial Closing or Option Closing, as applicable, such Seller holds has good and will hold valid marketable title to the applicable Redeemed Opco LLC Interestsbusiness and Assets, and holds and will hold such applicable Redeemed Opco LLC Interests free and clear of any and all liens, encumbrancesencumbrances or claims whatsoever (including any third party rights of first refusal to either the Assets, equities the equity of the SELLERR or the business), except those to be paid and satisfied at Closing; (C) SELLER possesses all licenses and/or permits necessary to operate the business, SELLER does not have knowledge of any of its licenses and/or permits that are not transferable to the PURCHASER, and, where capable and/or permitted by law, agrees to assign/transfer them to PURCHASER at Closing; (D) at Closing, there will be no judgments, liens, debts, accounts payable, claims, except for any encumbrances or taxes (sales or otherwise) due, fixed and contingent, or actions or proceedings pending or threatened by or against SELLER; (E) SELLER agrees (i) imposed under applicable securities laws or to conduct and operate the organizational documents business up to the date of Closing in accordance with all laws, rules and regulations, in the Company or Opco or regular course of business, and in the same manner as presently conducted and operated, and (ii) as would not reasonably be expected to, individually or in the aggregate, have a material adverse effect the ability of such Seller to consummate the transactions contemplated by this Agreement.
(e) Such Seller (either individually or each together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement. Such Seller has had the opportunity to ask questions and receive answers concerning violate the terms and conditions of the transactions contemplated by this Agreement as such Seller has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the transactions contemplated by this Agreement. Such Seller acknowledges that it has not relied upon any express or implied representations or warranties of any nature made business contract with third parties; (F) at or prior to Closing, SELLER will pay in full and satisfy all sales taxes, interest and penalties which may be due and/or owing to the Florida Department of Revenue, and at Closing, SELLER agrees to execute and deliver to PURCHASER an agreement to indemnify and hold PURCHASER harmless from any and all sales taxes, interest and penalties that may be asserted against PURCHASER as a result of SELLER’S operations prior to Closing and (G) all financial information provided by or on behalf of the Company or Opco, whether or not any such representations, warranties or statements were made SELLER to the PURCHASER regarding the business is true and correct in writing or orally, except as expressly set forth for the benefit of the Sellers in this Agreementall material respects.
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