Representations and Warranties by Seller. 5.1 Seller makes the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closing: (a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas which has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement. (b) Neither the entering into this Agreement nor the performance of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement or instrument to which Seller is a party. (c) Each of the Properties is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Properties. (d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties. (e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant. (f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. (g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities. (h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing. (i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing. (j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties. (k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
Representations and Warranties by Seller. 5.1 Seller makes hereby represents and warrants to Purchaser as of the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closingdate hereof that:
(a) Seller is a corporation national banking association, duly organized, organized and validly existing and in good standing under the laws of the State United States of Kansas which America;
(b) Seller has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Sellerperform all of its obligations hereunder, and the specific, individual parties signing execution and delivery of this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance by Seller of its obligation hereunder, (x) has been duly authorized, and (y) will not conflict with, or result in a breach of, any of the terms, conditions and provisions of its organizational and governance documents or any law, statute, rule or regulation, or order, judgment, writ, injunction or decree of any of Seller's obligations under this Agreement will violate the terms of court or governmental instrumentality, or any contract, agreement or instrument to which Seller it is a party.party or by which it is bound, or to which it or any portion of its property is subject and (z) except for the consent to the assignment of the Lamppost Agreement and the Revocable Consent Agreement contemplated hereby, will not require the consent, approval, authority or order of any court or governmental agency that has not been previously obtained in writing or delivered to the Purchaser;
(c) Each of the Properties is zoned there are no litigations, governmental or administrative proceedings or arbitrations presently pending or, to permit the operation of a restaurant thereonSeller's actual knowledge, and all improvements on each of the Properties conform threatened in writing with respect to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Properties.Property (exclusive of tort and other liability proceeding for which adequate insurance coverage is available, and exclusive of the proceedings, if any, set forth on SCHEDULE 10.1(c) hereto). Purchaser shall have no liability under, or any obligation to pursue, such litigation or proceedings;
(d) Seller has not received any written notice of any pending wideningcondemnation, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or similar proceedings with respect to the Property, and has no actual knowledge that any part of any of the Properties.such proceedings are threatened or contemplated;
(e) None the fixtures, furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located on the Property and being transferred to Purchaser pursuant to this Agreement (i.e., other than the Excluded Property, which is not being transferred) have been fully paid for and are owned by Seller free and clear of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used all liens and operated as a restaurant.encumbrances;
(f) Seller has not been served with any litigationa true and complete list of the Protest Proceedings, if any, and no arbitration proceedings have been commencedthe law firms or consultants representing the Seller with respect thereto, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.is attached hereto as SCHEDULE 10.1(f);
(g) Adequate gas, telephone, electricity, water and sewer facilities there are available to all no Leases in effect as of the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.date hereof except as set forth on SCHEDULE 10.1(g);
(h) There are Seller has not granted any written commitments to, person the option or written agreements with, right (including any governmental or quasi-governmental authority or agency materially affecting any right of refusal) to purchase the Properties which have not been heretofore disclosed by Seller to Buyer in writing.Property; and
(i) All expenses Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code. Any and all uses of the phrase, "to the best of the Seller's knowledge" or other references to Seller's knowledge in this Agreement shall mean the actual, present, conscious knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Seller Knowledge Individual") as to a fact at the time given without investigation or inquiry. Without limiting the foregoing, Purchaser acknowledges that the Seller Knowledge Individual has not performed and is not obligated to perform any investigation or review of any files or other information in the possession of Seller, or to make any inquiry of any persons, or to take any other actions in connection with the construction representations and warranties of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used set forth in this Agreement. Neither the actual, present, conscious knowledge of any other individual or entity, nor the terms "Environmental Regulations" and "Hazardous Materials" constructive knowledge of the Seller Knowledge Individual or of any other individual or entity, shall have be imputed to the following meanings:Seller Knowledge Individual.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Reckson Associates Realty Corp)
Representations and Warranties by Seller. 5.1 Seller makes hereby represents, warrants and covenants to Purchaser as of the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closingdate hereof that:
(ai) Seller is a corporation national banking association, duly organized, validly existing and in good standing under the laws of the State United States of Kansas which America;
(ii) Seller has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Sellerperform all of its obligations hereunder, and the specific, individual parties signing execution and delivery of this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance by Seller of its obligation hereunder, (x) has been duly authorized, and (y) will not conflict with, or result in a breach of, any of the terms, conditions and provisions of its organizational and governance documents or any law, statute, rule or regulation, or order, judgment, writ, injunction or decree of any of Seller's obligations under this Agreement will violate the terms of court or governmental instrumentality, or any contract, agreement or instrument to which Seller it is a party.party or by which it is bound, or to which it or any portion of its property is subject and (z) will not require the consent, approval, authority or order of any court or governmental agency that has not been previously obtained in writing or delivered to Purchaser;
(ciii) Each there is no litigation, and there are no governmental or administrative proceedings or arbitrations presently pending or threatened in writing with respect to the Unit or, to Seller's Knowledge, the Condominium that if successful could adversely affect the rights or obligations of Seller or Purchaser to the Unit, including its interest in the Common Elements (exclusive of the Properties is zoned proceedings, if any, set forth on Schedule 11(a)(iii) hereto). Purchaser shall have no liability under, or any obligation to permit pursue, such litigation or proceedings, except to the operation extent required under Section 8A hereof;
(iv) Seller has not received written notice of a restaurant thereonany pending condemnation, eminent domain or similar proceedings with respect to the Unit, except for the proceedings described on Schedule 11(a)(iv) attached hereto, and all improvements on each to Seller's Knowledge, no such proceedings are threatened or contemplated. Seller has received no written notice of any plan, study or effort by any governmental authority or agency that in any way adversely affects or would adversely affect the present use or zoning of the Properties conform to all existing buildingUnit, zoning, environmental or other laws and ordinancesexcept as may be set forth in Schedule 11(a)(iv) attached hereto, and to Seller's Knowledge no such plans, study or effort is being contemplated;
(v) except for the right of first offer to purchase the Unit in favor of Purchaser (which right has been or is being waived by Purchaser contemporaneously herewith), there are in good operating condition and repair as no unrecorded rights of first offer to purchase, rights of first refusal to purchase, purchase options or similar purchase rights or contractually required consents to transfer pertaining to the Unit which would be breached by this Agreement or the consummation of the Closing Datetransactions provided for herein;
(vi) the fixtures, furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located on the Unit (other than personal property owned or leased by tenants or any property manager) have been fully paid for and are owned by Seller free and clear of all liens and encumbrances;
(vii) there are no direct employees of Seller working at the Unit (including, without limitation, security personnel) whose employment will be required to be transferred to Purchaser as a result of the transactions contemplated by this Agreement;
(viii) to Seller's Knowledge, all monetary obligations with respect to the installation of any utilities servicing the Unit, including all connection, hook-up and tap fees, have been satisfied. Seller has received no written notice of any default with respect to any of its obligations concerning such utilities. Seller has not received notice, and to Seller's Knowledge there are no threats, of any curtailment of utility services to the Unit or any part thereof;
(ix) a true and complete list of the Protest Proceedings, if any, and the law firms or consultants representing Seller with respect thereto, and descriptions of the fee arrangements with such law firms and consultants are attached hereto as Schedule 11(a)(ix). Seller has not received any notice of any presently increase in the assessed valuation of the Unit (as it pertains to real, personal or other taxes payable with respect to the Unit) or the real estate or personal property taxes payable in respect thereof. There are no special assessments outstanding with regard to the Unit. Seller has provided Purchaser with true and correct copies of all agreements and documentation pertaining to (i) the applicability of the ICIP tax abatement to the Unit and (ii) to the extent applicable, the transferability of the benefits of such tax abatement to Purchaser at the Closing;
(x) Schedule 11(a)(x)(1) contains a true and complete description of the Existing Leases and Schedule 11(a)(x)(2) contains a true and complete description of the Contracts. Seller has delivered, or otherwise made available, to Purchaser true and complete copies of all documents comprising the Existing Leases and the Contracts and all other reports, information and correspondence relating to the Unit in the possession of Seller and/or any property manager retained by Seller for the management of the Unit, including, without limitation, books and records, tenant files, budgets and third-party reports. Seller acknowledges and agrees that Purchaser shall have the right to cause Seller to terminate, effective as of the Closing Date, any Contracts designated by Purchaser in a written notice given to Seller not less than forty-five (45) days prior to the Closing provided that such Contracts may be terminated on thirty (30) days' notice or less;
(xi) the rent roll attached hereto as Schedule 11(a)(xi) is true and complete in all material respects as of the date hereof. To Seller's Knowledge, there exists no uncured violation material default under any Lease on the part of any lawtenant except for past due rents specified on Schedule 11(a)(xi). All security or other deposits paid prior to the date hereof with respect to the Leases are accurately specified on Schedule 11(a)(xi). Except as disclosed on Schedule 11(a)(xi), ordinanceSeller has not received any written notice in which any tenant has asserted any defense, rule setoff or regulation counterclaim with respect to its tenancy or its obligations under its Lease;
(xii) there are no Leasing Commissions or Tenant Allowances now or hereafter payable by the landlord of the Unit with respect to the current or any renewal term of, or the exercise of expansion rights by tenants under, or upon the failure by any tenant to exercise any option to cancel, any of the Leases other than those set forth on Schedules 6(f)(i) and 6(f)(ii) attached hereto. There are no written promises, understandings or commitments in effect with respect to the leasing, occupancy or ownership of the Unit other than those contained in the Leases and written agreements with respect to the Leasing Commissions;
(xiii) Seller has not received any written notice with respect to a default by Seller under any of the Existing Leases, the Contracts or the Condominium Declaration and, to Seller's knowledge, Seller is not in default under any of the foregoing;
(xiv) none of the Leases or rents thereunder has been, or at the time of Closing will have been, assigned, pledged, hypothecated or otherwise encumbered by Seller. Except as set forth on Schedule 11(a)(xiv), no rent has been, or at the time of Closing will have been, prepaid under any of the Leases;
(xv) Schedule 11(a)(xv) contains a list of all insurance policies (other than title insurance policies) currently maintained by Seller with respect to the Unit;
(xvi) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986;
(xvii) this Agreement constitutes, and when duly executed and delivered by Seller, any and all documents, instruments and agreements contemplated hereunder to be executed and delivered by Seller will constitute, the valid and binding obligations of Seller, enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy laws and other laws or equitable principles affecting the rights of contracting parties generally;
(xviii) Seller has not received any notice, with which it has not complied, from any governmental entity or agency having jurisdiction over the Unit to the effect that the improvements comprising the Unit or the present use of the Unit fail to comply, in any material respect, with any applicable legal requirements with regard to the use and occupancy thereof (including, without limitation, those relating zoning and building laws and ordinances, environmental protection laws and other similar rules, regulations and orders of any governmental entity or agency having jurisdiction over the Unit) or with any requirements with respect to any building, occupancy or other permit, license or approval of any such governmental entity or agency with respect to the Unit except as set forth in Schedule 11(a)(xviii)(1). Schedule 11(a)(xviii)(2) contains a complete list of all zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Properties.
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used similar agreements between Seller and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority entities or agency materially affecting agencies that affect the Unit or the Common Elements or any portion of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.either of them;
(ixix) All expenses to Seller's Knowledge, all licenses, permits and approvals, if any, necessary in connection with the construction use or occupancy of all the improvements on all Unit have been, and at the Properties time of Closing will have been, obtained and are, and will then be, in full force and effect;
(xx) no unused transferable development rights appurtenant to the Unit have been fully paidassigned or transferred to any other person or entity by Seller;
(xxi) to Seller's Knowledge, such that there Seller is no possibility in compliance with all of the rules, regulations and requirements promulgated by the NYCDF under the ICIP relating to ICIP Application Numbers 4066 and 6052, which are the only ICIP Application Numbers pertaining to the ICIP tax exemption applicable to the Unit; and
(xxii) Seller does not have any mechanics' ownership interest in any building systems or materialmens' liens being asserted or filed equipment located in the future against any of the Properties in respect of any initial construction activities undertaken prior Common Elements other than such interests as may have been created pursuant to the ClosingMaster License Agreement.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Representations and Warranties by Seller. 5.1 Seller makes hereby represents and ---------------------------------------- warrants to the representations Corporation as of the date hereof and warranties in this Paragraph 5, each and all as of which shall survive any and all inquiries and investigations made by Buyer and shall survive the ClosingClosing Date as follows:
(a) Seller is a corporation duly organized, validly existing has full legal capacity and in good standing under the laws of the State of Kansas which has the unrestricted power and authority to enter into execute and deliver this Agreement and any other document, agreement, instrument or paper to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of be delivered by Seller have the full legal power, authority and right pursuant to execute and deliver or in connection with this Agreement.
(b) Neither This Agreement has been duly executed and delivered by Seller, and constitutes the entering into legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as the same may be affected by bankruptcy, insolvency, moratorium and similar laws affecting the rights of creditors generally.
(c) The execution, delivery and performance of this Agreement nor the performance do not and will not (i) result in a violation of any of law applicable to Seller's obligations under this Agreement will violate the terms , or (ii) result in a material breach of, conflict with or default under, any term or provision of any indenture, note, mortgage, bond, security agreement, loan agreement, guaranty, pledge, or other instrument, contract, agreement or instrument commitment, to which Seller is a party.
(c) Each party or by which he or any of the Properties is zoned to permit the operation of a restaurant thereonhis assets and properties, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoningthe Redeemed Shares, building, fire, health and safety) is subject or bound; nor will such actions result in the creation of any governmentallien, quasi-governmental authority bearing claim, charge or encumbrance on the construction, operation, ownership or use of any of the PropertiesRedeemed Shares.
(d) Seller has not received any notice is the legal and beneficial and of record owner of the Redeemed Shares, free and clear of any pending wideningand all liens, modification claims, charges or realignment other encumbrances of any street kind or highway contiguous nature whatsoever, other than for those arising under the Shareholders Agreement. The delivery by Seller of certificates evidencing the Redeemed Shares, duly endorsed for transfer or accompanied by stock transfer powers duly endorsed in blank, to either property the Corporation as described above, against payment therefor, will transfer valid title to said Redeemed Shares to the Corporation, free and clear of any and all liens, claims, charges or other encumbrances of any existing kind or proposed eminent domain proceeding which would result in a taking nature whatsoever. There are no warrants, calls, commitments or rights of all others, however evidenced or any part of created with respect to any of the PropertiesRedeemed Shares.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Representations and Warranties by Seller. 5.1 Seller makes the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closing:
(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas which has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement or instrument to which Seller is a party.
(c) Each of the Properties The Wichita Facility is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties Wichita Facility conform to all existing building, zoning, environmental or other laws and ordinances, and are is in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the PropertiesWichita Facility.
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the PropertiesWichita Facility.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties Wichita Facility is subject interferes with or is breached by the use or operation of the Properties Wichita Facility as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties Wichita Facility or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties Wichita Facility or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the PropertiesWichita Facility, and all such facilities serving the Properties Wichita Facility have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties Wichita Facility which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties Wichita Land have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties Wichita Facility in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the PropertiesWichita Facility, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties Wichita Facility in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties Wichita Facility or the area surrounding any of the PropertiesWichita Facility.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
Representations and Warranties by Seller. 5.1 Seller makes hereby represents and warrants to Buyer that the representations following are true and warranties in this Paragraph 5, each and all correct as of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closingdate hereof:
(ai) Seller is a corporation duly organizedhas legal power, validly existing and in good standing under the laws of the State of Kansas which has the power right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf and the consummation of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller transactions contemplated hereby have the full legal power, authority and right to execute and deliver this Agreementbeen duly authorized by all necessary partnership actions.
(bii) Neither the entering into The execution of this Agreement nor and the performance documents executed pursuant hereto will not result in a breach of or constitute any default, with or without notice or passage of Seller's obligations time, or both, under this Agreement will violate the terms of any agreement, contract, agreement note, deed of trust or instrument other document to which Seller is a partyparty or by which Seller or the Property is or might be bound.
(ciii) Each of Seller is not a "foreign person," as that term is used and defined in the Properties is zoned to permit the operation of a restaurant thereonInternal Revenue Code, and all improvements on each of the Properties conform to all existing buildingSection 1445, zoningas amended.
(iv) To Seller's knowledge, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received written notice that any notice of any presently uncured violation of any laweminent domain, ordinance, rule condemnation or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership similar proceeding or use of any of the Properties.
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result conveyance in a taking lieu thereof of all or any part of any of the PropertiesProperty is contemplated.
(ev) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or To Seller's ability to perform its obligations under this Agreement. In additionknowledge, Seller has not been threatened in writing with received any litigation (or arbitration) by a third party which would affect any aspect notices of violation of any of law, rule, regulation or ordinance affecting the Properties or Seller's ability to perform its obligations under this AgreementProperty.
(gvi) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of To Seller's knowledge, but without there are no actions, suits or proceedings pending or threatened against the Property.
(vii) To Seller's knowledge, collectively the actual Seller's Deliveries made by Seller and the Property Files to which Seller will provide Buyer access contains all material information in Seller's possession which are described in Paragraphs 6(b) and 6(c) hereof. Seller has not caused any specific investigation thereforematerial portion of the Property Files to be removed or destroyed. Seller has no knowledge of any material inaccuracies in any of the information contained in the Seller's Deliveries.
(viii) Seller is not the subject of any bankruptcy proceedings.
(ix) To Seller's knowledge, there are no Hazardous Materials located inphysical or structural defects to the Improvements, on except as disclosed to Buyer, in writing, or under all or any portion of as set forth in any of the Properties Seller's Deliveries. The representations and warranties made by Seller in this Agreement shall survive the Closing Date for a period of one (1) year, and any action for a breach of any representation, warranty or covenant must be made and filed within said one (1) year period. As used herein, "Seller's knowledge" means the area surrounding any current, actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President of Wellsford Residential Property Trust and the only officer/employee of Seller charged with the day-to-day operation and ownership of the PropertiesProperty.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wellsford Real Properties Inc)
Representations and Warranties by Seller. 5.1 Seller makes hereby represents and warrants to Buyer that the representations following matters are true and warranties in correct as of the execution of this Paragraph 5, each Agreement and all will also be true and correct as of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closing:
(a) a. Seller has not been served with any action, suit or proceeding affecting the Property or any portion thereof and, to Seller's current actual knowledge, there is a corporation duly organizedno action, validly existing and in good standing under the laws suit or proceeding pending or threatened or asserted against Seller, affecting Seller or any portion of the State of Kansas which Property, at law or in equity before any court or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign;
b. Seller has the power not received any notices and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance has no current actual knowledge of any of Seller's obligations under this Agreement will violate the terms condemnation actions, special assessment or improvement districts in formation or contemplated or other impositions of any contractnature which are pending or being contemplated with respect to the Property or any portion thereof;
c. Seller has not received and has no current actual knowledge of any notice of any violation of any ordinance, agreement regulation, law or instrument statute from any governmental agency pertaining to which Seller is a party.
(c) Each of the Properties is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental Property or other laws and ordinances, and are in good operating condition and repair as of the Closing Dateany portion thereof. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule governmental regulation or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on order restricting the construction, operation, ownership or use of any of the Properties.
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and Property in the manner in which the Property is being operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect on the date of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any To Seller's current actual knowledge the use of the Properties Property conforms to applicable building and zoning codes without the necessity for a variance or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any reliance upon a preexisting nonconforming use of the Properties which have not been heretofore disclosed by Seller Property;
d. Except with respect to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paidLoan, such that there is are no possibility of any mechanics' liens against or materialmens' liens being asserted or filed security interests in the future against any of the Properties in respect of any initial construction activities undertaken prior Property. Prior to the Closing.
(j) , Seller has shall not been served create or notified by voluntarily permit to be created any governmental liens, easements or quasi-governmental authority that (i) other condition affecting any portion of the PropertiesProperty without the prior written consent of Buyer. No work has been performed or is in progress by or on behalf of Seller and no materials have been furnished to the Property or any portion thereof, which might give rise to mechanic's, materialmen's or other liens against the Property or any portion thereof and which would exist after the Closing;
e. To Seller's current actual knowledge, all water, sewer, gas, electric, telephone and drainage and all other utilities required for the normal use and operation of the Property are installed to the property lines of the Property, are connected, and run over, through, or any adjoining propertyunder a public street or alley to the Property from the location at which such utility are connected to the main public utility line;
f. The documents, contains or may contain any "Hazardous Materials" in violation reports, and instruments delivered to Buyer under Article III of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In additionthis Agreement are, to the best of Seller's knowledge, but true, accurate and complete in every respect;
g. Seller is the owner of good and marketable fee simple title to the Property, free and clear of any liens, deeds of trust, pledges, security interest, leases, charges, encumbrances or restrictions of any kind except as may be specifically permitted herein. Except to the extent Seller's interest in the lessor's interest in the Tenant Leases has been assigned to the holder of the Loan, Seller is the sole owner of the lessor's interest in all of the Tenant Leases and, to Seller's current actual knowledge, all of such leases are in full force and effect without current default by either Seller or the respective tenants;
h. To Seller's current actual knowledge, Seller is not in default under any specific investigation thereforeindenture, mortgage, deed of trust or loan agreement or under any other agreements to which Seller is a part or by which Seller is bound and which in any way affects the Property. Seller is not a party to, nor bound by, any agreement or any order or decree of any court of governmental agency which might, to a material degree affect any portion of the Property;
i. To Seller's current actual knowledge, the execution by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby do not, and will not, result in a breach of any of the terms or provisions of, or constitute a default or a condition which upon notice or lapse of time or both would ripen into a default under any indenture, agreement, instrument or obligation to which Seller is a party or by which the Property or any portion thereof is bound, and does not, to Seller's current actual knowledge, constitute a violation of any order, rule or regulation applicable to Seller of any portion of the Property of any court or of any federal or state or municipal regulatory body or administrative agency or other governmental body having jurisdiction over Seller or any portion of the Property;
j. Seller has the full right, power and authority to carry out Seller's obligations hereunder. No consent of any third party is required therefor, except the consent of the lender for assumption of the Loan. This Agreement is a valid obligation of Seller and is binding upon Seller in accordance with its terms;
k. To Seller's current actual knowledge, Seller has paid all taxes, charges and assessments (special or otherwise) required to be paid or will prior to Closing, pay to any taxing authority which could in any way now or hereafter constitute a lien against the Property or any part thereof (except for taxes and assessments for the current year not currently due and payable). Seller has not received any notice from any taxing authority or governmental agency asserting that Seller has failed to file or has improperly filed any tax return or report required to be filed by it, or that it has not paid all taxes, charges or assessments now owing by it (except current taxes and assessments not yet delinquent) which could in any way now or hereafter constitute a lien against the Property or any part thereof; and no action or proceeding is now pending by a governmental agency or authority for the assessment of collection of such taxes, charged or assessments against Seller;
1. Except as may be shown in the Environmental Reports, Seller warrants and represents to Buyer that to the best of Seller's knowledge there are no Hazardous Materials located inon, in or under the Property; that Seller has not placed any underground storage tanks of any type under the Property; that during Seller's ownership of the Property and to the best of Seller's knowledge prior thereto, no cleanup or remediation of Hazardous Materials has ever been ordered or undertaken on or under with respect to the Property; that the Property complies in all respects with all Environmental Laws; except as has been disclosed to Buyer in writing, that all plumbing, electrical, mechanical and HVAC systems are in good working order, and, except as has been disclosed to Buyer in writing, that there are no hidden or any portion latent physical or mechanical defects in the Property of any of the Properties or the area surrounding any of the Properties.
(k) As which Seller has current actual knowledge, normal wear and tear excepted. The term "Hazardous Materials", when used in this Agreement, shall mean any substance, material or waste (including petroleum and petroleum products) whish is or becomes designated, classified, or regulated as being "toxic" or "hazardous" or a "pollutant" (or a similar designation) under any federal, state or local law, ordinance, rule or regulation, including but not limited to the terms Federal Water Pollution Control Act (33 U.S.C.ss.1251, et seq.), Resource Conservation and Recovery Act (42 U.S.C.ss.6901, et seq.), Safe Drinking Water Act (42 U.S.C.ss.3000f, et seq.), Toxic Substances Control Act (15 U.S.C.ss.2601, et seq.), the Clean Air Act (42 U.S.C.ss.7401, et seq.), Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.ss.9601, et seq.), the Superfund Amendments and Reauthorization Act of 1986, Pub.▇.▇▇. 99-499 ("SAR▇"), the Hazardous Materials Transportation Act (49 U.S.C.ss.1801, et seq.), California Health and Safety Codess.25100, et seq.;ss.39000, et seq., California Safe Drinking Water and Toxic Enforcement Act of 1986 (California Health and Safety Codess.25249.5, et seq.), California Water Code (ss.13000 et seq.) (collectively, "Environmental RegulationsLaws"), and also any asbestos or asbestos-containing materials, radon gas, and petroleum or petroleum fractions, whether or not defined as "toxic", "hazardous", or "pollutant" and "Hazardous Materials" shall have the following meanings:in any such law, ordinance, rule or regulation;
Appears in 1 contract
Sources: Rescission of Election to Terminate & Reinstatement of Purchase Obligation (Sports Arenas Inc)
Representations and Warranties by Seller. 5.1 Seller makes the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closing:
(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas which has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement or instrument to which Seller is a party.
(c) Each of the Properties is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Properties.
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
Representations and Warranties by Seller. 5.1 5.1. Seller makes the representations represents and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closingwarrants to Purchaser as follows:
(a) A. Seller is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Kansas which Florida. Seller has the full power and authority to enter into this Agreement own the Assets and to consummate conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller, and the consummation of the transactions contemplated hereby. Seller, and will not with or without the specificgiving of notice or the lapse of time or both:
(i) violate any provision of law, individual parties signing this Agreement on behalf statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, represent and warrant that result in the parties signing this Agreement on behalf breach of Seller have or conflict with any term, covenant, condition or provision of, or result in the full legal powermodification or termination of, authority and right to execute and deliver this Agreement.
(b) Neither or constitute a default under or result in the entering into this Agreement nor the performance creation or imposition of any lien, security interest, charge or encumbrance upon any of Seller's obligations the Assets being purchased hereunder, under this Agreement will violate the terms of corporate charter or by-laws or any contractother agreement, agreement understanding or instrument to which Seller is a partyparty or by which it is or may be bound or affected.
(c) Each C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Properties is zoned Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms.
D. All consents and approval required for transferring the Assets to permit Purchaser hereunder and for assigning the operation of a restaurant thereonagreements, including without limitation all amendments, modifications, and all improvements on each supplements, whether written or oral ("Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Properties conform Purchase Documents.
E. Seller has good and merchantable title to all existing buildingAssets and acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation.
F. To the best of its knowledge Seller has conducted its business in compliance with all applicable federal, zoningstate and local laws, environmental or other laws regulations and ordinances, and are in good operating condition and repair as of the Closing Date. .
G. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any presently uncured violation other party.
H. Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
I. There is (and has not been since its inception) no claim, litigation, action, suit or proceeding, administrative or judicial, pending or threatened against or affecting Seller, or involving any lawof the Assets, ordinanceat law or in equity or before any foreign, rule federal, state, local or regulation (other governmental authority, including, without limitation, those relating to zoningany claim, buildingproceeding, fireor litigation for the purpose of enjoining or preventing the consummation of this Agreement, health and safety) of any governmentalor the transactions contemplated hereby, quasi-governmental authority bearing on the constructionor otherwise claiming this Agreement, operation, ownership or use of any of the Properties.
(d) Seller has not received transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to Seller's knowledge is there any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to basis upon which any of the Properties such claim, litigation, action, suit or proceeding could be brought or initiated. Seller is subject interferes with or is breached by the use or operation of the Properties as presently used not (and operated as a restaurant.
(f) Seller has not been served with within the past three years) subject to or in default under any litigationjudgment, order, writ, injunction or decree of any court or any governmental authority, and no arbitration proceedings replevins, attachments, or executions have been commencedissued or are now in force against Seller, which do except for the settlement agreement with UPS. No petition in bankruptcy or will affect any aspect of any of the Properties receivership has ever been filed by or against Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Representations and Warranties by Seller. 5.1 Seller makes the representations represents and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by warrants to Buyer and shall survive the Closingas follows:
(a) Seller is a corporation duly organizedA. The execution, validly existing delivery and in good standing under the laws performance of the State of Kansas which has the power and authority to enter into this Agreement and of all documents to consummate be executed pursuant hereto by Seller have been duly authorized by all necessary action on the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf Part of Seller, represent and warrant that the parties signing and, upon delivery, this Agreement and all such documents shall constitute valid and binding obligations to Seller, enforceable in accordance with their respective terms;
B. The Property is transferable by Seller by its sole act and deed, and no consent on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance part of any of Seller's obligations under this Agreement will violate other person or entity is necessary to validate the terms of any contracttransfer to Buyer;
C. There are no unrecorded licenses, agreement leases or instrument other contractual rights relating to which Seller is a party.
(c) Each the use or possession of the Properties is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Property;
D. Seller has not received any notice of or written communication from any presently uncured violation of governmental entity indicating that a condition exists with respect to the Property that violates any county, state or federal law, ordinance, rule regulation or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of code; nor has Seller received any governmental, quasi-governmental authority bearing on the construction, operation, ownership written notice or use of any communication from an insurance carrier of the Properties.Property regarding dangerous, illegal or other conditions requiring corrective action;
(d) Seller has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) E. There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' litigation or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In additionproceeding pending or, to the best of Seller's knowledge, but without threatened against or relating to any specific investigation thereforeof the Property;
F. To the best of Seller's knowledge, Seller has not used the Property for the production, storage, deposit or disposal of toxic, dangerous or hazardous substances or pollutants, and, to the best of Seller's knowledge, no such substances or pollutants have been placed or located upon the Property during the period of time that Seller has owned the Property, which substances or pollutants, if found upon the Property, would subject the owner of the Property to any damages, penalties or liabilities under any applicable Federal, state or local environmental law.
G. To the best of Seller's knowledge, there are no Hazardous Materials located in, on pending suits or under legal actions by any governmental authority for the taking of all or any portion part of the Property or that allege any violation by Sellers of any applicable laws, rules or regulations of Federal, state, county or local governmental authorities pertaining to the Property or that could result in a lien being imposed upon the Property;
H. The representations and warranties contained in this paragraph shall be true as of the Properties or the area surrounding any date of the Propertiesthis Agreement and shall survive Closing for a period of one (1) year.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Western Wind Energy Corp)
Representations and Warranties by Seller. 5.1 Seller makes represents and warrants to Purchaser as of the representations and warranties in date of this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the ClosingAgreement as follows:
(a) Seller is a corporation an Illinois limited partnership, duly organizedformed, validly existing and in good standing under the laws Laws of the State of Kansas jurisdiction in which it was formed, and has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and legal right to execute engage in the transactions contemplated by, and deliver perform and observe the terms and conditions of this Agreement.
(b) Neither This Agreement and the entering into consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Seller and, upon the assumption that this Agreement nor constitutes a legal, valid and binding obligation of Purchaser, this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the performance enforcement of creditors' rights generally and by general principles of equity.
(c) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Seller do not and will not (i) violate or conflict with the Seller's organizational documents or (ii) violate or conflict with any Laws or any governmental regulation or permit applicable to Seller or (iii) result in a breach of, or constitute a default under, any provision of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement contract or other instrument to which Seller is a party.
party or by which it is bound, which breach or default would prevent or materially interfere with Seller's performance hereunder or (civ) Each result in the creation or imposition of any lien, charge or encumbrance pursuant to the Properties is zoned to permit the operation terms of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental any such contract or other laws and ordinancesinstrument which lien, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule charge or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership encumbrance would prevent or use of any of the Propertiesmaterially interfere with Seller's performance hereunder.
(d) Seller has not received any notice of any pending widening, modification Except as specified on Schedule 7(h) or realignment of any street or highway contiguous as previously disclosed to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer Purchaser in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without investigation or inquiry with respect thereto, Seller has not received written notice of any specific actions, suits or proceedings, either pending or threatened, against Seller in connection with the Loan, including, without limitation, any actions, suits or proceedings which might question the validity of this Agreement or the consummation of the transactions contemplated hereby.
(e) As of the date specified on Exhibit A (the "Pricing Date"), the (i) unpaid principal balance of the Loan, (ii) the amount of interest accrued on the Loan which remains unpaid, (iii) the rate or rates at which interest on the unpaid principal amount of the Loan accrues or is payable, and (iv) the maturity date with respect to the Loan are as specified on Exhibit A hereto.
(f) To the best of Seller's knowledge, (i) the Loan Documents specified on Schedule 7(f) hereto constitute all material Loan Documents, (ii) such Loan Documents have not been modified or amended, except as described on Schedule 7(f) hereto, and (iii) the copies of such Loan Documents which are attached to Schedule 7(f) or which have previously been delivered to Purchaser are true and correct in all material respects.
(g) Except as specified on Schedule 7(g) or 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation thereforeor inquiry with respect thereto, Seller has received no written notice that the Loan is subject to any right of rescission, set-off, recoupment, abatement, diminution, counterclaim or valid defense by the Borrower or any Guarantor which would affect the ability of the holder thereof to realize the practical benefits of the security intended to be provided by the Loan Documents for the Loan, as such realization may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such realization is considered in a proceeding at law or in equity.
(h) Except as set forth on Schedule 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, (i) Seller has not commenced or threatened to commence any actions, suits or proceedings in connection with the Loan Documents, and (ii) there are no Hazardous Materials located invalid, on effective and enforceable orders, injunctions or under all or any portion decrees of any federal, state, municipal or local court or arbitral body with respect to the Loan or the Loan Documents.
(i) Seller (i) is the sole owner and holder of the Properties Loan, free of any encumbrances, liens, pledges, charges or security interests of any nature, (ii) has not granted any other option to purchase or other rights in and to the Loan, (iii) has not pledged, collaterally assigned or otherwise hypothecated any, interest therein or agreed to do so and (iv) has obtained (to the extent required and not waived or the area surrounding requirement therefor otherwise avoided or averted) all consents of Borrower, any Guarantor or other third party pursuant to a Loan Documents which is necessary for the execution and delivery of this Agreement and the sale of the PropertiesLoan provided for herein.
(j) Except as specified on Schedule 7(j) hereto or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, neither Borrower nor any Guarantor has filed or is the subject of any proceeding under any state or federal bankruptcy or insolvency Law.
(k) As used Except as specified on Schedule 7(k) hereto or as previously disclosed to Purchaser, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, Seller has not received any written notice of any pending or threatened condemnation or similar proceeding affecting the Property.
(l) Except as specified on Schedule 7(l) hereto or as previously disclosed to Purchaser in writing, no environmental reports or studies with respect to the Property (collectively, "Reports") have been performed by or on behalf of Seller and, to the best of Seller's knowledge, without investigation or inquiry, Seller has not received notice that any of such Reports are inaccurate in any material respect. All warranties and representations of Seller in this AgreementSection 7 are true and correct in all material respects as of the date hereof, and, with respect to clauses (a) through (c) above, shall continue to be true and correct in all material respects as of the Closing Date. Subject to the provisions of Section 17 hereof, the terms "Environmental Regulations" representations and "Hazardous Materials" warranties of Seller contained in this Section 7 shall have survive the following meanings:Closing for a period of ninety (90) days; provided, however, that any claim hereunder based upon such representations and warranties must be made within such ninety (90) day period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Balcor Pension Investors Iii)
Representations and Warranties by Seller. 5.1 The Seller makes represents and warrants to the representations Purchaser on the date of the Original Agreement and warranties in this Paragraph 5, on each and all of day on which shall survive any and all inquiries and investigations made by Buyer and shall survive the Closingthere is a Purchase:
(a1) The Seller is a corporation duly organized, incorporated and validly existing under the Laws of its governing jurisdiction, and is duly qualified and licensed to carry on its business in all jurisdictions in which the nature of any business conducted by it or the character of any property and assets owned or leased by it requires such qualification, except to the extent that failure to have any such qualification or license would not have Material Adverse Effect.
(2) The execution, delivery and performance by the Seller of this Agreement and the Related Documents to which it is a party (a) are within the Seller’s corporate powers, (b) have been duly authorized by all necessary corporate action, and (c) do not contravene any of the following: (i) the Seller’s constating documents or by-laws; (ii) in any material respect, any Law applicable to the Seller including any regulation, order, tariff or ruling of the CRTC; (iii) any material contractual restriction binding on or affecting the Seller or its property; or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting, in any material respect, the Seller, its property or the Receivables Pool; and (d) do not result in or require the creation of any Adverse Claim upon or with respect to the Receivables Pool (other than the Seller’s Retained Interest hereunder). No transaction contemplated by this Agreement requires compliance with any bulk sales act or similar Law. This Agreement and each Related Document to which the Seller is a party has been duly executed and delivered by the Seller.
(3) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Seller of this Agreement or any Related Document to which the Seller is a party other than those which have been obtained or completed except where such lack of authorization, approval, action, notice or filing could not materially adversely affect (i) the value or collectibility of the Receivables Pool, or (ii) the Purchaser’s interests hereunder. For greater certainty, any authorization, approval, action, notice or filing required from or with the CRTC or the Canada Revenue Agency is deemed to be material.
(4) This Agreement and each Related Document to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms subject to (a) applicable bankruptcy, reorganization, winding-up, insolvency, moratorium and other Laws of general application limiting the enforcement of creditors rights, (b) the fact that the granting of equitable remedies such as specific performance and injunction is within the discretion of a court of competent jurisdiction, and (c) general principles of equity.
(5) There is no pending or, to the Seller’s knowledge, threatened, action or proceeding affecting the Seller or any of the Seller’s assets before any Governmental Authority which, if determined adversely, would have a Material Adverse Effect.
(6) Immediately prior to each Purchase, the Seller is the legal and beneficial owner of the Pool Receivables and Related Rights free and clear of any Adverse Claim. Upon such Purchase, the Seller shall sell, transfer, assign and convey to the Purchaser a valid and perfected undivided ownership interest to the extent of the Purchaser’s Ownership Interest in each Pool Receivable and Related Rights.
(7) No effective financing statement or other instrument similar in effect perfecting an Adverse Claim in any Pool Receivable or Related Rights is on file in any recording office registered or filed under the PPSA of any province or territory of Canada against the Seller, except in respect of which a waiver, release or acknowledgement in writing and in good standing under form and substance acceptable to the laws Purchaser has been obtained.
(8) Each Servicer Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or any such Affiliate) and all other information, historical performance data, exhibits, financial statements, documents, materials relating to collection practices and procedures, books, records or reports furnished at any time by or on behalf of the State Seller to the Agent or the Purchaser in connection with this Agreement are accurate in all material respects as of Kansas their respective dates or as of the date so furnished and do not or shall not omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(9) The chief executive office of the Seller is located in a Province of Canada where all actions necessary to perfect the Purchaser’s Ownership Interest in the Receivables Pool has been taken and completed and the offices where the Seller keeps its Records concerning the Pool Receivables and Related Security are located at the address or addresses set forth in Schedule C.
(10) Neither of the Seller nor any Originator is in default and, upon completion of each Purchase hereunder, shall not be in default, under any agreement or other document or instruments to which it is a party or by which it or any of its properties or assets is bound or affected where such default would have a Material Adverse Effect, and, for greater certainty, this includes any indenture or instrument evidencing or under which the Seller or an Originator has at any time outstanding indebtedness for borrowed money in excess of 5.0% of the power and authority aggregate principal amount of all outstanding indebtedness for borrowed money of the Seller on a consolidated basis.
(11) The Seller is not a non-resident of Canada within the meaning of the Income Tax Act (Canada).
(12) No Insolvency Event has occurred with respect to enter the Seller. The Seller has entered into this Agreement and the Related Documents to consummate which it is a party for the transactions contemplated hereby. Sellerpurpose of selling, transferring, assigning and conveying all of its right, title and interest in, to and under the Purchaser’s Ownership Interest to the Purchaser and receiving from the Purchaser the consideration therefor specified in this Agreement, and not for the specificpurpose of defeating, individual parties signing this Agreement on behalf hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against the Seller or for any other purpose relating in any way to the claims of creditors or others against the Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and right to execute and deliver this Agreement.
(b13) Neither Since the entering into this Agreement nor date of the performance last audited financial statements of any the Seller delivered pursuant to Section , there has been no change in the consolidated financial position or the consolidated results of Seller's obligations under this Agreement will violate the terms operations of any contract, agreement or instrument to which the Seller is that would have a partyMaterial Adverse Effect.
(c14) All Records reasonably necessary to originate, identify, administer and collect the Pool Receivables and Related Security in accordance with the terms hereof and the Credit and Collection Policy are owned by the Seller or if not owned by the Seller, the Seller has all necessary rights of access to such Records to so originate, identify, administer and collect the Pool Receivables and Related Security as contemplated herein.
(15) Each of the Properties Pool Receivables and the Receivables Pool is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Propertiesidentifiable.
(d16) Seller No Event of Termination (other than as set out in Section ) has not received any notice of any pending widening, modification or realignment of any street or highway contiguous to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Propertiesoccurred and is continuing.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without any specific investigation therefore, there are no Hazardous Materials located in, on or under all or any portion of any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Representations and Warranties by Seller. 5.1 Seller makes represents and warrants to Purchaser as of the representations and warranties in date of this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the ClosingAgreement as follows:
(a) Seller is a corporation an Illinois limited partnership, duly organizedformed, validly existing and in good standing under the laws Laws of the State of Kansas jurisdiction in which it was formed, and has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf of Seller, represent and warrant that the parties signing this Agreement on behalf of Seller have the full legal power, authority and legal right to execute engage in the transactions contemplated by, and deliver perform and observe the terms and conditions of this Agreement.
(b) Neither This Agreement and the entering into consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Seller and, upon the assumption that this Agreement nor constitutes a legal, valid and binding obligation of Purchaser, this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the performance enforcement of creditors' rights generally and by general principles of equity.
(c) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Seller do not and will not (i) violate or conflict with the Seller's organizational documents or (ii) violate or conflict with any Laws or any governmental regulation or permit applicable to Seller or (iii) result in a breach of, or constitute a default under, any provision of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement contract or other instrument to which Seller is a party.
party or by which it is bound, which breach or default would prevent or materially interfere with Seller's performance hereunder or (civ) Each result in the creation or imposition of any lien, charge or encumbrance pursuant to the Properties is zoned to permit the operation terms of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental any such contract or other laws and ordinancesinstrument which lien, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice of any presently uncured violation of any law, ordinance, rule charge or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership encumbrance would prevent or use of any of the Propertiesmaterially interfere with Seller's performance hereunder.
(d) Seller has not received any notice of any pending widening, modification Except as specified on Schedule 7(h) or realignment of any street or highway contiguous as previously disclosed to either property or any existing or proposed eminent domain proceeding which would result in a taking of all or any part of any of the Properties.
(e) None of the easements, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilities.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer Purchaser in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulations. In addition, to the best of Seller's knowledge, but without investigation or inquiry with respect thereto, Seller has not received written notice of any specific actions, suits or proceedings, either pending or threatened, against Seller in connection with the Loan, including, without limitation, any actions, suits or proceedings which might question the validity of this Agreement or the consummation of the transactions contemplated hereby.
(e) As of the date specified on Exhibit A (the "Pricing Date"), the (i) unpaid principal balance of the Loan, (ii) the amount of interest accrued on the Loan which remains unpaid, (iii) the rate or rates at which interest on the unpaid principal amount of the Loan accrues or is payable, and (iv) the maturity date with respect to the Loan are as specified on Exhibit A hereto.
(f) To the best of Seller's knowledge, (i) the Loan Documents specified on Schedule 7(f) hereto constitute all material Loan Documents, (ii) such Loan Documents have not been modified or amended, except as described on Schedule 7(f) hereto, and (iii) the copies of such Loan Documents which are attached to Schedule 7(f) or which have previously been delivered to Purchaser are true and correct in all material respects.
(g) Except as specified on Schedule 7(g) or 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation thereforeor inquiry with respect thereto, Seller has received no written notice that the Loan is subject to any right of rescission, set-off, recoupment, abatement, diminution, counterclaim or valid defense by the Borrower or any Guarantor which would affect the ability of the holder thereof to realize the practical benefits of the security intended to be provided by the Loan Documents for the Loan, as such realization may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such realization is considered in a proceeding at law or in equity.
(h) Except as set forth on Schedule 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, (i) Seller has not commenced or threatened to commence any actions, suits or proceedings in connection with the Loan Documents, and (ii) there are no Hazardous Materials located invalid, on effective and enforceable orders, injunctions or under all or any portion decrees of any federal, state, municipal or local court or arbitral body with respect to the Loan or the Loan Documents.
(i) Seller (i) is the sole owner and holder of the Properties Loan, free of any encumbrances, liens, pledges, charges or security interests of any nature, (ii) has not granted any other option to purchase or other rights in and to the Loan, (iii) has not pledged, collaterally assigned or otherwise hypothecated any, interest therein or agreed to do so and (iv) has obtained (to the extent required and not waived or the area surrounding requirement therefor otherwise avoided or averted) all consents of Borrower, any Guarantor or other third party pursuant to a Loan Documents which is necessary for the execution and delivery of this Agreement and the sale of the PropertiesLoan provided for herein.
(j) Except as specified on Schedule 7(j) hereto or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, neither Borrower nor any Guarantor has filed or is the subject of any proceeding under any state or federal bankruptcy or insolvency Law.
(k) As used Except as specified on Schedule 7(k) hereto or as previously disclosed to Purchaser, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, Seller has not received any written notice of any pending or threatened condemnation or similar proceeding affecting the Property.
(l) Except as specified on Schedule 7(l) hereto or as previously disclosed to Purchaser in writing, no environmental reports or studies with respect to the Property (collectively, "Reports") have been performed by or on behalf of Seller and, to the best of Seller's knowledge, without investigation or inquiry, Seller has not received notice that any of such Reports are inaccurate in any material respect.
(m) To the best of Seller's knowledge, (i) the letters dated August 26, 1996, December 6, 1996 and December 11, 1996 from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ on behalf of Seller to the Borrower, represent the only written prepayment correspondence from Seller to Borrower with respect to the Loan; (ii) there have been no oral prepayment communications between Seller and Borrower which differed in any material respect from the letters referred to above; and (iii) with the exception of the letters dated November 27, 1996 and December 10, 1996, Seller has received no written prepayment correspondence from Borrower. All warranties and representations of Seller in this AgreementSection 7 are true and correct in all material respects as of the date hereof, and, with respect to clauses (a) through (c) above, shall continue to be true and correct in all material respects as of the Closing Date. Subject to the provisions of Section 17 hereof, the terms "Environmental Regulations" representations and "Hazardous Materials" warranties of Seller contained in this Section 7 shall have survive the following meanings:Closing for a period of ninety (90) days; provided, however, that any claim hereunder based upon such representations and warranties must be made within such ninety (90) day period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Balcor Pension Investors V)
Representations and Warranties by Seller. 5.1 Seller makes hereby represents and warrants to Buyer that as of the representations and warranties in this Paragraph 5, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the ClosingEffective Date:
i. Seller has no notice of any pending or threatened condemnation or similar proceeding or assessment affecting the Real Property, or any part thereof, nor to the best of its knowledge, is any such proceeding or assessment contemplated by any governmental authority, nor to the best of its knowledge, is there any litigation pending or threatened which affects or could affect the Real Property.
ii. Except as set forth on Schedule 14(a)(ii) attached hereto, (a) Seller is a corporation duly organized, validly existing except in the ordinary course of business and in good standing under compliance with applicable law, Seller has not at any time generated, used, treated or stored Hazardous Materials on, or transported Hazardous Material to or from the laws of Real Property or any property adjoining or adjacent to the State of Kansas which has Real Property and, to the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller, and the specific, individual parties signing this Agreement on behalf knowledge of Seller, represent and warrant that no party other than Seller has taken such actions on the parties signing this Agreement on behalf of Seller have the full legal powerReal Property, authority and right to execute and deliver this Agreement.
(b) Neither Seller has not at any time released or disposed of Hazardous Materials on the entering into this Agreement nor Real Property or any property adjoining or adjacent to the performance Real Property, and to the knowledge of the Seller, no party other than Seller has taken any of Seller's obligations under this Agreement will violate such actions on the terms of any contractReal Property, agreement or instrument to which Seller is a party.
(c) Each of the Properties is zoned to permit the operation of a restaurant thereon, and all improvements on each of the Properties conform to all existing building, zoning, environmental or other laws and ordinances, and are in good operating condition and repair as of the Closing Date. Seller has not received any notice transported or arranged for the transportation of any presently uncured violation of Hazardous Materials to any lawsite other than the Real Property, ordinance, rule or regulation (including, without limitation, those relating to zoning, building, fire, health and safety) of any governmental, quasi-governmental authority bearing on the construction, operation, ownership or use of any of the Properties.
(d) Seller has not received any notice is in compliance with all Environmental Laws and the requirements of any pending wideningpermits issued under such Environmental Laws with respect to the Real Property, modification or realignment of any street or highway contiguous except where failure to either property or any existing or proposed eminent domain proceeding which comply would result in not have a taking of all or any part of any of the Properties.
material adverse effect on Seller's Real Property, (e) None there are no past, pending or, to the knowledge of Seller, threatened environmental claims against Seller or the easementsReal Property, covenants, conditions, restrictions or agreements to which any of the Properties is subject interferes with or is breached by the use or operation of the Properties as presently used and operated as a restaurant.
(f) to the knowledge of Seller, there are no facts or circumstances, conditions or occurrences regarding the Real Property that could reasonably be anticipated (A) to form the basis of an environmental claim against Seller has not been served with or (B) to cause the Real Property to be subject to any litigationrestrictions on its ownership, occupancy, use or transferability under any Environmental Law, and no arbitration proceedings have been commenced, which do or will affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement. In addition, Seller has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of any of the Properties or Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities there are available to all the Propertiesnot now, and all such facilities serving to the Properties knowledge of Seller, never have been paid for such that Buyer will not be subject to charges or assessments for capital or hookup costs relating to such facilitiesany underground storage tanks located on the Real Property.
(h) There are not any written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Properties which have not been heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the improvements on all the Properties have been fully paid, such that there is no possibility of any mechanics' or materialmens' liens being asserted or filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Closing.
(j) Seller has not been served or notified by any governmental or quasi-governmental authority that (i) any of the Properties, or any adjoining property, contains or may contain any "Hazardous Materials" in violation of any "Environmental Regulations" (as those terms are defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have heretofore been stored, used or maintained on, in or under any of the Properties in violation of any Environmental Regulationsiii. In addition, to To the best of Seller's knowledge, but without Seller has complied in all material respects with all applicable laws, ordinances, regulations and statutes relating to the Real Property or any specific investigation thereforepart thereof and is not in violation of any such laws as they relate to the Real Property.
iv. This Purchase Contract and all documents executed by Seller which are to be delivered to Buyer at Closing are or at the time of delivery will be duly executed and delivered by Seller, and are or at the time of Closing, will be legal, valid, binding obligations of Seller, and do not and at Closing will not violate any provisions of any agreement or any applicable governmental law or regulation to which the Seller is a party or to which Seller is subject.
v. There are no restrictions or applicable regulations which prevent the use of the Real Property for automobile dealership and servicing purposes.
vi. The restrictive covenants encumbering the Real Property (if any) have not been violated and there are no assessments owed pursuant to such restrictions.
vii. Other than ad valorem real property taxes, there are no Hazardous Materials located in, on other taxes or under all assessments pending or any portion of any of periodically charged to Seller with respect to the Properties or the area surrounding any of the PropertiesReal Property.
(k) As used in this Agreement, the terms "Environmental Regulations" and "Hazardous Materials" shall have the following meanings:
Appears in 1 contract
Sources: Contract to Purchase and Sell Real Property (Sonic Automotive Inc)