REAL PROPERTY PURCHASE AND SALE AGREEMENT (CANADA) Between 3058348 NOVA SCOTIA COMPANY, a Nova Scotia unlimited liability company and 3058349 NOVA SCOTIA COMPANY, a Nova Scotia unlimited liability company, as Sellers and GLADSTONE COMMERCIAL LIMITED PARTNERSHIP, a Delaware limited partnership, as Purchaser
Real Estate Purchase and Sale Agreement
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REAL PROPERTY PURCHASE AND SALE AGREEMENT
3058348 NOVA SCOTIA COMPANY
3058349 NOVA SCOTIA COMPANY
GLADSTONE COMMERCIAL LIMITED
Dated August 11, 2004
TABLE OF CONTENTS
REAL PROPERTY PURCHASE AND SALE
THIS REAL PROPERTY PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of the 11 th day of August, 2004, by and between 3058348 NOVA SCOTIA COMPANY , a Nova Scotia unlimited liability company (the “Dorval Seller”), and 3058349 NOVA SCOTIA COMPANY , a Nova Scotia unlimited liability company (the “Granby Seller,” and, together with Dorval, the “Sellers”), and GLADSTONE COMMERCIAL LIMITED PARTNERSHIP , a Delaware limited partnership (the “Purchaser”), recites and provides as follows:
A. The Sellers are the registered and beneficial owners of all of the interest (or its Quebec civil law equivalent) in the real property and improvements as indicated on Schedule 1.2 attached (including the residual interests in any tenant improvements thereon) together with all rights and appurtenances pertaining to such land, including, without limitation, (i) all minerals, oil, gas, and other hydrocarbon substances thereon; (ii) all right, title and interest of Sellers in and to adjacent strips, streets, roads, avenues, alleys and rights of way, public or private, open or proposed; (iii) all easements, covenants, privileges, and hereditaments, whether or not of record; (iv) all access, air, water, riparian, development, utility, and solar rights; (v) all signs, appliances, security systems, fixtures, mechanical systems, landscaping and other property owned by Sellers located at either Property (as hereafter defined), but excluding items of property owned by Tenant (as hereinafter defined) attached to the Property that, pursuant to the provisions of the corresponding Lease (as hereafter defined), may be removed by Tenant; (vi) all site plans, surveys, plans and specifications, and floor plans relating to the Property; (vii) all warranties, guarantees and bonds relating to the Property; and (viii) all permits, licenses, certificates of occupancy, and other governmental approvals which relate to the Property, each of which is referred to individually as a “Property” and which are collectively referred to as the “Properties.” The Properties are identified on Schedule 1.2 by street address.
B. Each of the Sellers desires to sell all of its interest in the corresponding Property to the Purchaser, and the Purchaser desires to purchase all of the Sellers’ interests in the Properties.
NOW THEREFORE , for and in consideration of the premises, the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as follows:
1. PURCHASE AND SALE
1.1 Certain Definitions . For purposes of this Agreement:
1.1.1 “GE Capital” means GE Capital Canada Equipment Financing, Inc.
1.1.2 “Mortgage Loan” shall mean the mortgage loans made by GE Capital the repayment of which is secured by mortgages or deeds of trust encumbering the Properties.
1.1.3 “Purchase Price” means the amount, in U.S. dollars, that is the purchase price of each Property, as identified on Schedule 1.2 for such Property.
1.1.4 “Person” shall mean and include natural persons, corporations, limited liability companies, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, Indian tribes or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof.
1.1.5 For purposes of this Agreement, the “knowledge” of a Person shall mean the actual knowledge of such Person’s officers, senior executives, managing members, managing partners, general partners, majority shareholders, key employees or their equivalents, and shall mean that the applicable party has conducted a reasonable review of its files and such review did not disclose any information contrary to the accuracy or veracity of any such representation or warranty, but without attribution or other duty of inquiry.
1.1.6 For purposes of this Agreement, “business day” shall mean any day excluding Saturday, Sunday and any day which in the Commonwealth of Virginia is a legal holiday or a day on which banking institutions are authorized by law or by other governmental actions to close.
1.2 Agreement to Purchase and Sell . Subject to the terms and conditions of this Agreement, at the “Closing” (as hereafter defined), each Seller shall sell, transfer and convey to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, all of each Seller’s rights, title and interests in and to its Property as identified on Schedule 1.2 .
1.3 Encumbrances . The Purchaser shall acquire each Property with legal warranty free and clear of all liabilities, obligations and commitments of the Sellers and free and clear of all liens, hypothecs, prior claims, servitudes and any other encumbrances other than the “Permitted Exceptions” (as hereafter defined).
1.4 Purchase Price . On the terms and subject to the conditions of this Agreement, at the Closing, the Sellers shall sell, transfer, convey, assign and deliver to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, all of the rights, title and interests of the
Sellers in and to the Properties and the “Leases” (as hereafter defined) for an aggregate purchase price (the “Aggregate Purchase Price”) of $4,467,340 (US). On the date of full execution of this Agreement (as reflected by the dates opposite the signatures on the execution page hereof) (the “Execution Date”), the Purchaser shall deposit with First American Title Insurance Company (the “Title Insurer”) the sum of $100,000, to be held in an interest-bearing account to be approved by the Purchaser (such deposit, together with any interest earned thereon, is hereafter referred to as the “Deposit”), to be held in accordance with an Escrow Agreement substantially in the form attached hereto as Schedule 1.4 , which shall be applied to the Aggregate Purchase Price, retained by the Sellers, or refunded to the Purchaser, all as more particularly set forth herein. The Aggregate Purchase Price shall be allocated between the Properties as set forth in Schedule 1.2 , provided that the parties may change such allocations hereafter by mutual agreement. The Aggregate Purchase Price shall be payable as follows:
1.4.1 At the Closing, the Deposit shall be applied against the Aggregate Purchase Price; and
1.4.2 At the Closing, the Purchaser shall pay the remainder of the Aggregate Purchase Price to the Sellers by wire transfer of immediately available funds.
The Aggregate Purchase Price will be adjusted pursuant to Sections 4.1, 6.1 and 6.2, as applicable.
2. DUE DILIGENCE
2.1 Purchaser’s Tests and Inspections . The Purchaser, its agents, contractors, employees and other representatives, shall have the right at any time during normal business hours throughout the period (the “Due Diligence Period”) extending from the Execution Date to 11:59 p.m. on the 30 th day thereafter, and upon 24 hours prior notice to the Sellers (which notice may be oral or written,) to enter upon the Properties, subject to the rights of the respective tenants thereof, and to conduct environmental assessments, appraisals, surveys and other inspections and tests of the Properties. The Purchaser shall have the right, by written notice to the Sellers, to extend the Due Diligence Period for up to ten (10) days to the extent necessary for the Purchaser to obtain final reports from the third party inspectors and service providers performing the services referenced in the preceding sentence. The Purchaser, in its sole and absolute discretion, shall have the right to terminate this Agreement by giving written notice of termination to the Sellers at any time prior to the expiration of the Due Diligence Period. Upon any such termination, the Deposit shall be returned to the Purchaser, and the parties shall have no further rights or obligations hereunder, except for any obligations imposed under the last 3 sentences of this Section 2.1, the Sellers’ indemnification obligations under Section 6.21 hereof with respect to a breach of the Sellers’ representations and warranties under Section 6.20 hereof, the Purchaser’s indemnification obligations under Section 7.6 hereof with respect to a breach of the Purchaser’s representations and warranties under Section 7.5 hereof, the Purchaser’s obligations under Sections 8.1.1 and 8.1.3 hereof, and the Sellers’ obligations under Sections 8.2.1 and 8.2.2 hereof (together, the " Post-Termination Obligations”). The Purchaser shall indemnify against and hold the Sellers harmless from any claims, demands, liabilities,
losses damages, costs, and expenses, including, without limitation, attorneys’ fees, arising from entry upon the Properties by the Purchaser, or any of the Purchaser’s agents, contractors, employees, or other representatives, or the conduct of such tests, surveys, studies or other due diligence. If the Closing does not occur, the Purchaser, at its own expense, shall repair any damage to the Properties caused in the performance of the Purchaser’s tests and studies. If the Purchaser elects to rescind and terminate this Agreement as aforesaid, the Purchaser shall deliver to the Sellers copies of the written results of such tests, surveys, studies and other due diligence (other than internal marketing or economic studies) within thirty (30) days after the expiration of the Due Diligence Period.
2.2 Surveys and Title Commitments . Within five (5) days after the commencement of the Due Diligence Period, the Purchaser will order the following relative to the Properties: (a) ALTA/ACSM land title surveys (or an acceptable Canadian equivalent thereof); and (b) ALTA Form B 1970 title insurance commitments, including all required endorsements (together, the “Title Commitments”), issued by the Title Insurer’s National Accounts Office in Washington, D.C. The Purchaser shall be responsible for the costs of such surveys and the Title Commitments as provided in Section 5.5 hereof.
2.3 Delivery of Documents and Information . Prior to the date of this Agreement, the Sellers delivered to the Purchaser certain documents and items of information with respect to the Properties, including, without limitation, the following:
2.3.1 Copies of the leases as to each of the Properties (the “Leases”), and the related lease guaranties (the “Lease Guaranties”), as follows:
220.127.116.11 That certain Lease Agreement, dated as of July 28, 2001 (the “Dorval Lease”), between Data Business Form Limited, as Tenant (the “Tenant”), and the Dorval Seller, as Landlord;
18.104.22.168 That certain Unconditional Guaranty Agreement, dated as of July 27, 2001, from Workflow Management, Inc., a Delaware corporation (the “Guarantor”), to the Dorval Seller;
22.214.171.124 That certain Lease Agreement, dated as of July 28, 2001 (the “Granby Lease”), between the Tenant, as Tenant, and the Granby Seller, as Landlord; and
126.96.36.199 That certain Unconditional Guaranty Agreement, dated as of July 27, 2001, from the Guarantor to the Granby Seller; and
2.3.2 Copies of the most recent survey and owner’s title insurance policy for each of the Properties.
2.4 Additional Information . The Sellers shall furnish to the Purchaser all information concerning the title to, the condition or operation of, and the income from the Properties that is in the possession of the Sellers and that the Purchaser may reasonably request.
3. STATUS OF TITLE TO THE PROPERTIES
3.1 State of Title . At Closing, the Sellers shall own and be the registered owner of good and marketable fee simple title (or its Quebec civil law equivalent) to the Properties, subject only to those servitudes, covenants, conditions, restrictions and other matters affecting title as set forth in Schedule 3.1 attached (the “Scheduled Exceptions.”) The Leases and the Scheduled Exceptions are referred to collectively herein as the “Permitted Exceptions.”
3.2 Preliminary Evidence of Title . Within 3 weeks after the Execution Date, the Purchaser shall obtain, in a form acceptable to the Purchaser, the following documents to evidence the condition of the title to each Property:
3.2.1 The Title Commitments which shall commit the Title Insurer to insure, at standard rates, good and marketable title to each Property, subject only to the Permitted Exceptions, in the amount of the Purchase Price of each such Property. The Title Commitments shall reflect that fee simple title (or its Quebec civil law equivalent) is held by the respective Seller. The owner’s title insurance policies, and endorsements thereto, to be issued to the Purchaser at Closing pursuant to Section 5.3.5 hereof are hereafter referred to as the “Title Insurance Policies.”
3.2.2 Sub-searches followed by title opinions (the “Title Opinions”) for each Property evidencing that each Property is owned by the corresponding Seller by good and marketable title free and clear of all hypothecs, prior claims, servitudes, leases, encumbrances and other charges other than the Permitted Exceptions.
3.2.3 Written results of searches reflecting any liens, hypothecs, bankruptcies, and litigation (the “RDPRM Searches”), conducted by the Purchaser’s attorneys in connection with the Sellers or the Properties. The RDPRM Searches shall be conducted as to each Seller and shall search the appropriate registries.
3.3 Title Defects . The Purchaser shall have the right to review the Title Commitments, Title Opinions, RDPRM Searches and any surveys or certificates of location of the Properties obtained by Purchaser or any existing survey or certificate of location (or any revision or update of any of them, all of which are collectively referred to as the “Surveys”). The Purchaser shall obtain any new Surveys within 3 weeks after the Execution Date. The Purchaser shall notify the Sellers in writing within 10 business days after the Purchaser receives the last of the Title Commitments, Surveys, Title Opinions and RDPRM Searches, as the case may be, of any defects in or exceptions to title to either of the Properties (other than the Permitted Exceptions) that the Purchaser finds to be unacceptable. Within 5 business days after receiving such notice from the Purchaser, the Sellers shall notify the Purchaser of the Sellers’ election (a) to cure such exceptions, in which event the Sellers shall cure such exceptions promptly and at their expense, including, if applicable, obtaining a judgment confirming title, and the Closing Date shall be extended as necessary to permit the completion of such cure, or (b) not to cure such exceptions, in which event the Purchaser shall either waive such condition
and proceed to purchase the Properties as provided herein or terminate this Agreement. If the Purchaser so elects to terminate, the Deposit shall be returned to the Purchaser, and the parties shall have no further rights or obligations hereunder, except for the Post-Termination Obligations. Unless the Sellers expressly agree to do so, the Sellers shall have no obligation to cure or remove any title defects or exceptions; provided that the Sellers shall pay off the Mortgage Loan, and any other monetary liens and hypothecs (other than the Permitted Exceptions), at the Closing so as to effect the release of the Properties from any mortgages, deeds of trust, hypothecs and other documents and instruments securing repayment of the Mortgage Loan.
4. CLOSING PRORATIONS AND ADJUSTMENTS
4.1 Prorations and Adjustments . Rent payable under the Leases shall be prorated between the Sellers and the Purchaser as of the Closing Date, with the Sellers being entitled to all of such rent accruing up to and through the Closing Date, and the Purchaser being entitled to all of such rent accruing after the Closing Date. The Tenant for each Property is solely responsible for, and the Sellers and the Purchaser shall not prorate or adjust between themselves, any other disbursements, payments, or obligations relating to the Properties, whether accruing before, during or after the Closing Date, including, without limitation,:
4.1.1 Real estate and personal property taxes and assessments; and
4.1.2 Water, electric, telephone and all other utility and fuel charges.
5.1 Closing Date . The closing of the purchase and sale transaction contemplated by this Agreement (the “Closing”) shall occur at the offices of the Title Insurer at 9:00 a.m. on the 20 th day after the expiration of the Due Diligence Period (the “Closing Date,” provided that, if such 20 th day is not a business day, the Closing Date shall be the next business day thereafter), provided that all conditions to Closing have been satisfied or waived, or at such other time and place as the Sellers and the Purchaser shall agree in writing.
5.2 Closing Documents
5.2.1 Sellers . Not later than the Closing Date, the Sellers shall deliver or execute and deliver, as the case may be, to the Purchaser the following:
188.8.131.52 Executed originals of the deeds of transfer for the Properties;
184.108.40.206 Original, executed counterparts of the Leases and the Lease Guaranties;
220.127.116.11 An executed assignment and assumption agreement (the “Assignment”) with respect to the Leases in the form attached as Schedule 18.104.22.168 ;
22.214.171.124 An executed quitclaim bill of sale as to all of Sellers’ rights, title and interests, if any, in and to any tangible personal property and fixtures at or on the Properties in the form attached as Schedule 126.96.36.199 ;
188.8.131.52 Any affidavits, certificates and other documents that are reasonably required for the Title Insurer to issue the Title Insurance Policies in the form required by this Agreement;
184.108.40.206 For each Seller, a resolution authorizing the transactions contemplated by this Agreement, a certified copy of each of the Certificates of Incorporation and Registration, and the Memorandum and Articles of Association, and a certificate of incumbency certifying the titles and signatures of the persons authorized to consummate the transactions contemplated hereunder on behalf of such Seller;
220.127.116.11 The Seller’s Certificate Re: Representations and Warranties (the “Seller’s Certificate”) in the form attached as Schedule 18.104.22.168 ;
22.214.171.124 An opinion of Sellers’ counsel substantially in the form attached as Schedule 126.96.36.199 ; and
188.8.131.52 All other documents reasonably required by the Purchaser in connection with the transactions contemplated by this Agreement, provided that such documents do not require the Sellers to make representations, warranties and covenants, or to incur obligations, in addition to those required by or provided under this Agreement.
5.2.2 Purchaser . At the Closing, the Purchaser shall deliver, pay or execute and deliver, as the case may be, the following:
184.108.40.206 The Aggregate Purchase Price as provided in Section 1.4 hereof;
220.127.116.11 An executed original of the deeds of transfer of the Properties;
18.104.22.168 For the Purchaser, a resolution authorizing the transactions contemplated by this Agreement, a certified copy of each of the partnership certificate, the partnership agreement and any other structural documents of the Purchaser, a certificate of incumbency certifying the titles and signatures of the persons authorized to consummate the transactions contemplated hereunder on behalf of the Purchaser, and a certificate of good standing, or its equivalent, from the appropriate governmental authority in the state of the Purchaser’s organization;
22.214.171.124 The Assignment;
126.96.36.199 An opinion of Purchaser’s counsel substantially in the form attached as Schedule 188.8.131.52 ;
184.108.40.206 All other documents reasonably required by the Sellers in connection with the transactions contemplated by this Agreement, provided that such documents do not require the Purchaser to make representations, warranties and covenants, or to incur obligations, in addition to those required by or provided under this Agreement.
5.3 Conditions to the Purchaser’s Obligation to Close . The obligations of the Purchaser under this Agreement, including the obligation to pay the Aggregate Purchase Price at Closing as provided in Section 1.4 hereof, are subject to the satisfaction of the following conditions (unless explicitly waived in writing):
5.3.1 Each and every representation and warranty of the Sellers contained in this Agreement shall be true, correct and complete in all material respects as of the date hereof and at all times through the Closing Date as certified in Seller’s Certificate;
5.3.2 The Sellers shall have fully performed and satisfied each and every material obligation, term and condition to be performed and satisfied by them under this Agreement;
5.3.3 All consents, authorizations, certificates, and approvals required to be obtained by the Sellers in connection with this Agreement shall have been obtained;
5.3.4 The condition of the Property shall not have changed materially since the Execution Date;
5.3.5 The Purchaser shall have received the Title Insurance Policy (or marked-up commitment therefor) for each Property insuring fee simple title to such Property in the amount of the Purchase Price for such Property, subject only to the Permitted Exceptions, at the Purchaser’s expense.
5.3.6 The Sellers shall have delivered to the Purchaser all closing documents required by Section 5.2.1 hereof.
5.3.7 The “U.S. Sellers” (as hereafter defined) shall close under that certain Real Property Purchase and Sale Agreement, of even date herewith (the “U.S. Purchase Agreement”), between the Purchaser and PBC-Pocono, L.L.C. and PBC-Norfolk, L.L.C. (the “U.S. Sellers”) contemporaneously with the Closing.
5.3.8 No material adverse change shall have occurred in the financial condition of the Tenants and the Guarantor since the Execution Date.
5.3.9 The Sellers shall have delivered to the Purchaser a certificate from each Tenant, dated no more than 30 days prior to the Closing Date, certifying: (1) that such Tenant has accepted the premises leased under its Lease; (2) that such Lease is in full force and effect and has not been modified (or, if modified, setting forth all modifications thereof), or, if such Lease is not in full force and effect, specifying the reasons therefor; (3) the
commencement date and the scheduled expiration date of such Lease, whether such Tenant has any options to extend the term thereof and, if so, describing such extension options; (4) the date to which the base rent and additional rent under such Lease have been paid and the amount thereof then payable; (5) the amount of the prepaid rent and/or security deposit, if any, being held by the corresponding Seller, as landlord; (6) whether, to such Tenant’s knowledge, there are then any existing defaults by the corresponding Seller in the performance of its obligations under such Lease, and, if there are any such defaults, specifying the nature and extent thereof; and (7) that no notice has been received by such Tenant of any default under such Lease that has not been cured, except as to defaults specified in such certificate. Each such certificate shall not contain any information that is inconsistent with the terms of the corresponding Lease; provided that such certificate may reflect any uncured claim of breach or default, or any information that is inconsistent with the terms of the corresponding Lease, only if such uncured claim or inconsistent information is acceptable to the Purchaser.
5.3.10 The Purchaser shall have received as to each Property (i) a zoning letter for the jurisdiction in which the Property is located in form acceptable to the Purchaser or (ii) a zoning report/evaluation from a zoning consultant selected by the Purchaser or (iii) an opinion of counsel acceptable to the Purchaser, in each case indicating that the use and operation of the Property are in compliance with the applicable zoning ordinance. Purchaser shall request such zoning letter, zoning report/evaluation or opinion of counsel, as appropriate, promptly after the Execution Date, shall thereafter diligently pursue the issuance thereof and shall be solely responsible for any fees or costs in connection therewith.
5.4 Conditions to the Sellers’ Obligation to Close . The obligations of the Sellers under this Agreement are subject to the satisfaction of the following conditions (unless explicitly waived in writing):
5.4.1 Each of the representations and warranties of the Purchaser contained in this Agreement shall be true, correct and complete as of the date hereof and at all times through the Closing Date.
5.4.2 The Purchaser shall have fully performed and satisfied each and every material obligation, term and condition to be performed and satisfied by it under this Agreement.
5.4.3 All consents, authorizations and approvals required to have been obtained by the Purchaser in connection with this Agreement shall have been obtained.
5.4.4 The Purchaser shall close under the U.S. Purchase Agreement contemporaneously with the Closing.
5.5 Transaction Costs . Regardless of whether Closing occurs, but subject to the provisions of Article 9 hereof, each of the parties shall be responsible for its own costs in connection with this Agreement and the transaction contemplated hereby, including, without
limitation, fees of attorneys, engineers, accountants, surveyors, title insurers and other professionals; provided that the Purchaser shall be responsible for all of its due diligence costs, including title examination costs, for all title insurance premiums and charges, survey costs, mutation duties, the cost for the preparation and delivery of title opinions, searches at the applicable land registries, and notary fees. The Sellers shall be responsible for any fees or costs that are charged by GE Capital in connection with the payoff of the Mortgage Loan. Documentary stamps, clerk’s fees, transfer and recordation taxes, costs of registration and other recording, filing and registration costs with respect to the deeds of transfer, including, without limitation, land transfer duties, shall be paid by the Purchaser.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, and solidarily, represent and warrant to the Purchaser that, except as described on the Schedules attached and incorporated by reference herein, the following are true, complete and correct as of the date of this Agreement.
6.1 Organization . Each of the Sellers is an unlimited liability company duly organized and validly existing under the laws of the Province of Nova Scotia, and has all requisite power and authority to own or lease and operate its properties (including its respective Property) and assets and to conduct its business in the manner in which they are being owned or leased and operated and conducted, as the case may be. Each Seller is duly qualified in all jurisdictions where its ownership, lease or operation of assets and properties (including the Properties) or the conduct of its business requires such qualification.
6.2 Authority . The execution and delivery of this Agreement and all agreements, documents and instruments contemplated hereby, and the performance of all transactions contemplated herein or therein, have been duly and validly authorized by all necessary corporate action, and by all necessary action of the board of directors, of each Seller. This Agreement and the agreements, documents and instruments to be executed and delivered by the Sellers in connection herewith constitute the legal, valid and binding obligations of the Sellers, enforceable against the Sellers in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws generally affecting creditors’ rights and remedies, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except to the extent that rights to indemnification under or contemplated by this Agreement or such other agreements may be limited by federal or state securities laws or public policy relating thereto. To the knowledge of the Sellers, neither of the Sellers is required to obtain any consent, authorization, approval or waiver from any governmental agency or authority or from any third party in connection with the execution and delivery of, and the performance of the obligations to be performed under, this Agreement and the documents and instruments to be executed and delivered in connection herewith, or, if any of the foregoing is required, it has been obtained.
6.3 Interest in Properties . Each Seller is the registered and beneficial owner of, and has good, marketable and insurable fee simple title (or its Quebec civil law equivalent) to, the
Properties set forth opposite such Seller’s name on Schedule 1.2 , free and clear of all hypothecs, prior claims, servitudes, encroachments, leases, charges, liens, options, adverse claims or encumbrances, except the Permitted Exceptions. Between the date hereof and the Closing Date, no liens, claims, hypothecs, servitudes or encumbrances will be created by Seller or permitted to be created by Seller on any Property other than Permitted Exceptions. Except for the Tenants, their assigns and subtenants, if any, there are no parties in possession of any portion of the Properties as of the Closing Date, and there are no other rights of possession, or agreements providing for the sale, assignment or transfer of title to either Property or portion thereof (other than this Agreement), which have been granted by the Sellers to any third parties.
6.4 No Defaults . (a) Each of the Sellers has performed in all material respects its material obligations under any agreement, license, contract, deed, mortgage, hypothec, lease, instrument, certificate, affidavit or covenant affecting title to the Properties; (b) there are no contracts or agreements between either of the Sellers and any third party, such as maintenance, service, or utility contracts, affecting title to the Properties; and (c) there are no contracts or agreements between either of the Sellers and any third party for the management or leasing of either Property, and there is no leasing commission due and owing, or to become due and owing, in connection with either of the Leases; and (d) except for the Permitted Exceptions, there are no contracts, agreements, liabilities, claims or obligations of any kind or nature relating to title to the Properties and to which the Purchaser will be bound or the Properties will be subject after the Closing.
6.5 No Litigation; No Expropriation . There are no actions, suits, proceedings or claims pending, or to the knowledge of each Seller, threatened or contemplated, with respect to or in any manner affecting the Properties, or either Seller’s interest therein, or the ability of each Seller to complete the transactions contemplated by this Agreement, or that could prevent either Seller from satisfying its obligations under this Agreement. Neither Seller has received written notice of any pending or threatened expropriation or similar proceedings or special assessments affecting the Properties, or any part thereof.
6.6 No Violation . The execution and delivery of this Agreement and the agreements, documents and instruments executed and delivered in connection herewith, the consummation of the transactions contemplated hereby or thereby, and the operation of each Property shall not: (a) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement, contract, mortgage, hypothec, deed, lease, license, or instrument to which either Seller is a party or is subject or to which either Property is subject; (b) to the Sellers’ knowledge, violate any agreement, contract, mortgage, deed, hypothec, lease, license, franchise, restriction, easement, servitude, restrictive covenant or instrument to which either Seller or either Property is subject; (c) to the Sellers’ knowledge, constitute a violation of any applicable code, resolution, law, statute, regulation, ordinance, rule, judgment, decree or order applicable to either Seller; (d) with respect to each Seller, violate any provision of its organizational documents; or (e) result in the acceleration of any indebtedness or any encumbrance pertaining to either Seller or either Property, or the cancellation of any contract, agreement, license, instrument or lease pertaining to either Property. Neither of the Sellers has received any written notice of any material violation (both as to the condition and the use of the
Properties) of any applicable laws, statutes, ordinances, codes (including, but not limited to, zoning, building, subdivision, pollution, environmental protection, water disposal, health, fire and safety engineering codes, and laws and regulations with respect to the submetering of any utilities serving either Property), and the rules and regulations of, any governmental authority having jurisdiction over either of the Properties.
6.7 Required Obligations . The Sellers have paid and performed all material obligations relating to the Properties required to have been paid or performed prior to the date hereof and prior to the Closing Date.
6.8 Condition of Properties . To Sellers’ knowledge, none of the structural, mechanical, electrical, plumbing, roofing and other major systems on either Property are required to be replaced or are in need of material repair.
6.9 Utilities . To the Sellers’ knowledge, usable sanitary and storm sewers and public water, gas and electrical utilities of adequate capacity for the operation of the Properties as presently operated, are installed in, and are duly connected to, the Properties and can be used without any charge except the normal user charges for sanitary sewers and the normal and usual charges imposed for public water, gas and electrical utilities.
6.10 Zoning . To each Seller’s knowledge, each Property is currently located in areas zoned for its current use, which classification permits the development, use and operation of the improvements on such Property as such improvements currently are being used. The Sellers have no knowledge of any threat of, and have not received written notice of, any proceeding to change adversely or down-zone the existing zoning classification as to any portion of either Property. The Properties are not subject to the provisions of an Act to Preserve Agricultural Land and Agricultural Activities or the Cultural Property Act.
6.11 Improvements . To Sellers’ knowledge, all improvements on the Properties comply with all requirements of applicable laws, ordinances, regulations and orders, including, without limitation, applicable zoning, building and fire safety codes and all restrictive covenants, if any, and other servitudes, encumbrances or agreements affecting title to either of the Properties.
6.12 Environmental Matters .
6.12.1 For purposes of this Agreement:
220.127.116.11 “Environmental Claim” means any claim, action, cause of action, investigation, or notice (written or oral) by any person or entity alleging potential liability (including, without limitation, potential liability for investigatory costs, cleanup costs, governmental response costs, natural resource damages, property damages, personal injuries, or civil or criminal penalties) arising out of or resulting from (a) the actual or alleged presence or release into the environment of any Substance of Concern at any
location, whether or not owned or operated by either of the Sellers, or (b) circumstances forming the basis of any actual or alleged violation of any Environmental Law.
18.104.22.168 “Environmental Laws” means all federal, provincial, local, and municipal laws, regulations, bylaws, treaties, orders in counsil, policies, directives or guidelines relating to pollution or protection of human health or the environment (including, without limitation, those (i) relating to actual or threatened emissions, discharges, releases, or migration of Substances of Concern, (ii) civil or common law principles of delictual liability, and (iii) otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Substances of Consern.
22.214.171.124 “Substances of Concern” means contaminants of any kind, pollutants, chemicals, wastes, toxic substances, hazardous substances, or radioactive materials, as they are regulated pursuant to any Environmental Laws, including, without limitation, (a) petroleum or any fraction thereof, (b) asbestos, or (c) any substance or material defined as a “hazardous material” pursuant to Section 1 of the Environment Quality Act (R.S.Q. c. Q-2) and its regulations.