2008/10/15 Council Agenda Packet

rz known to Seller, has ever been cited in writing for violating any federal, state or local environmental law or regulation with respect to operations or activities on or about the Property; and all reports, test results, and other documents relating to the presence or absence of Hazardous Substances on or about the Property in Seller's possession are being delivered to Purchaser concurrently herewith. f. Agreements and Contracts. There are no management agreements, service contracts, or other agreements affecting the Property or the operation or maintenance thereof. g. Marketable Title. Seller has, as of the date of this Agreement, and will have as of the date of Closing, good, marketable and indefeasible title to the Property subject only to the matters set forth in this Agreement. Without in any way limiting the generality of the foregoing representation, Seller further represents and warrants to Purchaser (i) that no understanding, agreement (either express or implied), or reasonable expectancy of agreement with respect to sale, lease or other transfer of the Property exists between Seller and any third party. h. Obligations. There are no obligations in connection with the Property which will be binding upon Purchaser after Closing, except for those matters set forth in the Title Commitment which have been approved by Purchaser and the matters set forth herein. Absence of Moratorium. To Seller's knowledge, no moratorium, statute, order, regulation, ordinance, legislation, judgment, ruling or decree of any court or governmental agency, except applicable building and zoning codes and regulations, has been enacted, adopted, issued, entered, or is pending or in effect, that could materially and adversely affect the Property, Purchaser's ability to develop and operate its Project, or both. All of the representations, warranties, and covenants of the Seller contained in this Agreement (i) shall be true and correct as of the date of this Agreement and as of the Closing Date; and (ii) Purchaser's rights to enforce such representations and warranties and covenants shall survive the Closing for a period of six (6) months and such rights to enforce shall not be merged into any documents delivered by Seller at Closing. Seller shall indemnify, defend and hold Purchaser harmless from and against any cause, claim, loss, damage or expense, including attorneys fees, which Purchaser suffers as a result of a breach of the representations, warranties and covenants contained in this Agreement by Seller. The term "Seller's knowledge" shall mean the actual, as opposed to constructive or implied, knowledge of Mike Palacios in his position as real property manager. In no event shall Mike Palacios have any personal liability whatsoever hereunder. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED IN CONNECTION WITH THE CLOSING, PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND 61 -9- 50939068.4