Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit of the Purchaser as follows: (a) Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transaction; (b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies; (c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law; (d) Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims; (e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions; (f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser); (g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property. (i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller; (j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof; (k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable. (l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program. (m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property; (n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access. (o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property; (p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property; (r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property; (s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller; (t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such; (v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser; (w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts; (x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and (y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Samples: Interest Purchase Agreement (Consolidated Tomoka Land Co)
Representations and Warranties by Seller. Seller hereby represents makes the following representations and warrants warranties to and for the benefit of the Purchaser as followsBuyer:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware, is qualified to do business in which it is formed, with all necessary the States of California and Utah and has the legal power and authority to execute and deliver this Agreementown its properties, to perform carry on its obligations hereunder, business as now being conducted and to consummate enter into this Agreement and each Ancillary Document to which it is a party and, subject to the Transaction;receipt of the regulatory approvals, carry out the transactions contemplated hereby and thereby and perform and carry out all covenants and obligations on its part to be performed under and pursuant to this Agreement and each Ancillary Document to which it is a party.
(b) The execution, delivery and performance by Seller of this Agreement and each Ancillary Document to which it is a party have been duly authorized by all necessary action, and do not and will not require any consent or approval of Seller’s managing member or equity holders other than that which has been obtained.
(c) The execution and delivery of this Agreement and each Ancillary Document to which it is a party, the consummation of the transactions contemplated hereby and thereby and the fulfillment of and compliance with the provisions of this Agreement and each Ancillary Document to which it is a party, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any Requirement of Law, or any organizational documents, agreement, deed of trust, mortgage, loan agreement, other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which it or any of its property is bound, or result in a breach of or a default under any of the foregoing or result in or require the creation or imposition of any Lien upon any of the properties or assets of Seller (except as contemplated hereby), and Seller has obtained or shall timely obtain all Permits required for the lawful performance of its obligations hereunder and thereunder and operation of the Facility in accordance with Prudent Utility Practices, the requirements of this Agreement, the Ancillary Documents and all Requirements of Law.
(d) This Agreement and each of the Ancillary Documents to which it is a party, constitutes when executed and delivered by the Seller a legal, valid and binding obligation of the Seller, is legally binding, and is and will be Seller enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and other insolvency, reorganization or similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally or by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) There is no pending, or to the knowledge of Seller, threatened action or proceeding affecting Seller before any Governmental Authority, which purports to affect the legality, validity or enforceability of this Agreement or any of the Ancillary Documents.
(f) Seller is not in violation of any Requirement of Law, which violations, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the business, assets, operations, or condition (financial or otherwise) of Seller or the ability of Seller to perform any of its obligations under this Agreement or any Ancillary Document.
(g) Seller shall inform all investors in the Seller of the existence of this Agreement and all Ancillary Documents on or before the date of such investment in the Seller.
(h) Seller is a Special Purpose Entity.
(i) Seller has (i) not entered into this Agreement or any Ancillary Document with the actual intent to hinder, delay or defraud any creditor and (ii) received reasonably equivalent value in exchange for its obligations under this Agreement and the discretion Ancillary Documents. No petition in bankruptcy has been filed against Seller, and neither Seller nor any of its constituent Persons has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for its benefit as a debtor.
(j) All of the courts assumptions made in granting equitable remedies;the Non-Consolidation Opinion, including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Seller has complied with all of the assumptions made with respect to Seller in the Non-Consolidation Opinion. Seller has no reason to believe that any environmental authorizations under the laws of the State of Utah or other Permits required to construct, maintain or operate the Facility in accordance with the requirements of this Agreement and all applicable Requirements of Law will not be timely obtained in the ordinary course of business.
(ck) The execution All Tax returns and delivery reports of Seller required to be filed by it have been timely filed, and all Taxes shown on such Tax returns to be due and payable and all assessments, fees and other governmental charges upon the Seller and upon its properties, assets, income, business and franchises that are due and payable have been paid when due and payable. Seller knows of no proposed Tax assessment against Seller that is not being actively contested by it in good faith and by appropriate proceeding.
(l) Seller owns or possesses, or will own or possess in a timely manner, all patents, rights to patents, trademarks, copyrights and licenses necessary for the performance by Seller of this Agreement and the consummation by Ancillary Documents and the Seller of the Transactiontransactions contemplated thereby, will not constitute (without any conflict with the giving rights of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or programothers.
(m) At all times after the Commercial Operation Date, Seller has filed all federal, state and local tax returns as required by law with respect to Seller, shall have “Site Control” which means that Seller shall: (i) own the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal lawsFacility Premises; (qii) There are no unrecorded leases effecting be the holder of grant or promised in connection with grants of right of way to Seller by the Real Property;
USBLM; or (riii) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on be the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner lessee of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in Facility Premises under a manner lease which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), permits Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or its obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform shall provide Buyer with prompt notice of any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing change in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any status of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingSite Control.
Appears in 1 contract
Samples: Power Purchase Agreement (First Wind Holdings Inc.)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit of the Purchaser as followsthat:
(a) Seller Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of Nevada. Company is duly qualified to do business and in which it is formed, with good standing as a foreign corporation in all necessary jurisdictions where the nature of its business or the ownership of its properties requires such qualification. Company has all requisite corporate power and authority to execute own, lease and deliver operate its properties, to carry on its businesses as they are now being conducted and to enter into and perform this Agreement, to perform its obligations hereunder, . Company is in material compliance with applicable securities laws and to consummate the Transactionregulations of the SEC;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation The authorized capital stock of the SellerCompany consists of 70,000,000 shares of common stock, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies$0.001 par value ("Common Stock");
(c) The execution issued and delivery by the Seller outstanding capital stock of this Agreement Company consists and the consummation by the Seller as of the TransactionClosing will consist of eleven million (11,000,000) shares of Common Stock, will not constitute (all of which are duly authorized and validly issued, fully paid and nonassessable, and issued in compliance with the giving of notice or the lapse of time or both) a violation ofall applicable federal, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable lawstate and foreign securities laws;
(d) Seller Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any Persons, that affects or relates to the owner voting or giving of written consents with respect to any securities of the Transferred Interest Company or the voting by any director of the Company;
(e) The Shares are, and has as of the Closing DateDate will be, duly authorized and validly issued, fully paid and nonassessable, and issued in compliance with all applicable federal, state and foreign securities and other applicable laws. Upon the Closing, Purchaser will own approximately 59.54% of the issued and outstanding capital stock of the Company;
(f) Seller owns the Shares free and clear of any lien, encumbrance, adverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase and upon the consummation of the sale of the Shares as contemplated in this Agreement, Purchaser will have good title to such Transferred Interestthe Shares, free and clear of any and all encumbranceslien, liensencumbrance, claimsadverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase;
(eg) The Company Seller has the full legal right, power and authority to enter into and to perform this Agreement, to consummate the transactions contemplated hereby, and to sell and transfer the Shares without the consent or approval of any other Person, and has taken, or will be, at take prior to the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except actions necessary for the Permitted Exceptionsauthorization, execution, delivery and performance of this Agreement;
(fh) This Agreement constitutes Seller's valid and binding obligation, enforceable against Seller in accordance with its terms;
(i) There are no claims, actions, suits, arbitrations, criminal or civil investigations or proceedings pending or involving or, to the knowledge of Seller, threatened against Company before or by any court or governmental or nongovernmental department, commission, board, bureau, agency or instrumentality, or any other person or entity and to the knowledge of Seller, there is no litigationvalid basis for any claim, action, suit, arbitration, investigation or other proceeding that could reasonably be expected to be materially adverse to the business, assets, operations, prospects or condition (financial or other) of Company before or by any person or entity;
(j) There are no outstanding, threatened, or unsatisfied judgments, orders, decrees or stipulations to which Company is a party that involve the transactions contemplated herein or that would have a material adverse effect on the business, assets, operations, prospects or condition (financial or other) of Company;
(k) There are no labor disputes, employee grievances or disciplinary actions pending or, to the knowledge of Seller’s Knowledge, threatened (whether such matters are brought at law, in equity against or before involving Company or any administrative agency present or other Governmental Authority or instrumentality) former employee of the Company and Company has complied with all provisions of law relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No brokeremployment and employment practices, agentterms and conditions of employment, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify wages and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (hours including, without limitation, organic materialsequal opportunity, strippingsworkplace safety, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; workers' compensation and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.similar laws;
(l) Except Seller has no reason to believe that the Company's balance sheet, as set forth in Schedule 6.2(l)appended hereto as Exhibit A, to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.inaccurate; and
(m) No information furnished by Company or Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised Purchaser in connection with the Real Property;
this Agreement (rincluding, but not limited to, financial statements and information) To Seller’s Knowledge, there are no cemeteries, grave sites is false or burial sites located on the Property;
(s) To Seller’s Knowledge, misleading in any material respect and neither Seller Company nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from made any federal, untrue statement of a material fact or omitted to state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not a material fact necessary in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary order to make the same true statements made or information delivered in or pursuant to this Agreement not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Representations and Warranties by Seller. 7.1 Seller hereby represents and warrants to and for the benefit of the Purchaser as followsthat:
(a) Seller 7.1.1 The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of Virginia, has full corporate power and authority to carry on and conduct the business in which it is formednow engaged, with all necessary to own and operate its properties and assets, and is duly authorize to carry on and conduct such business in those other states where it is qualified as a foreign corporation;
7.1.2 The authorized capitalization of the Company consists of One Hundred (100) shares at one dollar ($1.00) par value per share;
7.1.3 The Company has full corporate power and authority to execute enter into this Agreement and deliver all corporate and other proceedings required to be taken by and/or on behalf of the Company to authorize it to carry out the transactions contemplated by this Agreement, to perform its obligations hereunder, have been duly and to consummate the Transactionproperly taken;
(b) 7.1.4 This Agreement constitutes when has been duly executed and delivered by and on behalf of the Seller Company. This Agreement is a valid and legally binding obligation Agreement of the SellerCompany, is legally binding, and is and will be enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization or similar laws now or hereafter in effect, relating to creditor's rights and except as enforceability that the remedy of specific performance and injunctive relief and other forms of equitable relief may be limited by applicable bankruptcy, insolvency subject to equitable defenses and other laws and equitable principles affecting creditors’ rights generally and to the discretion of the courts in granting equitable remedies;Court before any proceeding therefore may be brought.
(c) 7.1.5 The execution and delivery by the Seller Company of this Agreement does not and the consummation in compliance by the Seller of Company with the Transactionterms thereof, will not constitute (with the giving result in any violation of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), with or constitute a default under (i) any term or provision of the Charter or By-laws of the Company or so far as is known to such counsel of any law, statute, or governmental regulation or of any license, decree, order, agreement, commitment indenture or understanding other instrument applicable to the Company, of which such representative or counsel has(ve) knowledge.
7.1.6 Except as set forth on Exhibit 2, there is no legal action, suit, proceeding or claim and no investigation by any governmental agency pending or threatened against the Transferred Interest Company or the assets, business or goodwill of the Company is subject which would have a materially adverse effect on the financial or by which it is boundother condition, assets, business, goodwill, or (ii) any applicable lawprospects of the Company or upon the transactions contemplated by this Agreement;
(d) 7.1.7 Seller is has the owner of full power, capacity, and authority to sell, assign, transfer and deliver the Transferred Interest Shares, and has as of the Closing Date, to vest in Purchaser good and marketable title to such Transferred Interestthereto, free and clear of any and all liens, encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgagesoptions, security interests, and restrictions, or adverse claims, except for and the Permitted Exceptions;
(f) There is no litigationexecution, actiondelivery and performance of this Agreement by Seller, or other proceeding pending or, to and the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) transactions contemplated herein, will not breach or conflict with any agreement to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as which Seller is a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Propertyparty.
7.1.8 Annexed hereto as Exhibits 5 and 6 are 2002 Federal and State Corporation Income Tax Return and unaudited Financial Statement and associated documents and 2003 Y-T-D Unaudited Financials and associated documents through October 31, 2003 for Seller (i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j"Financial Statements"), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth below, the Financial Statements:
a. Have been prepared in Schedule 6.2(s)accordance with generally accepted accounting principals consistently applied throughout the periods indicated;
b. Set forth all material assets and material liabilities of Seller, Seller has received no written notices from any federalas applicable thereto, state or local governmental authority having jurisdiction over as of the Real Propertydates indicated;
c. Are true, to correct and complete;
d. Are in accordance with the effect that books and records of Seller; and
e. Fairly, completely, and accurately present the Real Property is not in compliance with any financial position of such environmental lawsSeller, or that as applicable, at the Real Property is dates specified and the subject results of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release their operations for the periods covered. To the best of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge's knowledge, there are no pending actions liabilities of the Corporation of any kind or nature, fixed or contingent, matured or unmatured or otherwise, which are not fully reflected or reserved against on the Financial Statements, or any liability or obligation of any kind or nature arising since the date of the Financial Statements, other than those incurred in the ordinary course of business consistent with past practices.
7.1.9 Seller has filed all foreign, federal, state, county, and local income, excise, sales, property, withholding, social security, franchise, license, information returns and other tax returns and reports required to have been filed by it to the date hereof. To the best of Seller's knowledge, each such return is true, correct and complete, and Seller has paid all taxes due to any foreign, federal, state, county, local or other taxing authority with respect to all periods prior to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition date of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Financial Statements required to have been paid by Seller with and create a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.sufficient
Appears in 1 contract
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit of the Purchaser Buyer that, except as followsmay be disclosed in Seller's Diligence Deliveries:
(a) The execution and delivery by Seller is of, and Seller's performance under this Agreement are within Seller's powers and have been duly organizedauthorized by all requisite parties, validly existing and in good standing under that the laws person executing this Agreement on behalf of Seller has the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transaction;do so.
(b) This Agreement constitutes when executed and delivered by the Seller a legal, valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;.
(c) The execution Execution, delivery and delivery by the Seller performance of this Agreement and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both)breach of, or constitute a any default under (i) under, any agreement, commitment existing agreement or understanding other instrument to which the Transferred Interest or the Company Seller is subject a party or by which it is Seller might be bound, or (ii) any applicable law;.
(d) Seller is the owner of the Transferred Interest and has as of the Closing DateTo Seller's knowledge, there are no unrecorded leases, liens or easements affecting title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;the Property.
(e) The Company will beTo Seller's knowledge, at Seller has received no notice, nor is Seller aware of, any material violation of any agreement, judicial order, statute or governmental regulation applicable to the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;.
(f) There is To Seller's knowledge, no litigation, action, or other proceeding pending or, to hazardous substances (as defined by CERCLA) exist on the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);Property.
(g) No brokerTo Seller's knowledge, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due there is no pending condemnation proceeding with respect to any broker, finder or intermediary in connection with portion of the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; Property.
(h) Other than this Agreement, Seller represents, except as set forth on Schedule 6.2(h)has not entered into any sales contracts for the sale of all or any portion of the Property and, to Seller’s Knowledge's knowledge, (i) there are no site unrecorded agreements, options, or area improvements have been constructed rights of first refusal to purchase all or installed by any public authority, the cost of which may be assessed in whole or in part against any part portion of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has which have not been notified of any possible future improvements that might create an assessment against any part of the Real Propertyotherwise disclosed by Seller to Buyer herein.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge's knowledge, there are no cemeteriesactions or proceedings pending to liquidate, grave sites reorganize, place in bankruptcy, or burial sites located on dissolve Seller and no such actions are contemplated by Seller. As used herein, the Property;
(s) To phrase "to Seller’s Knowledge's knowledge" shall mean that such statement is true and correct to the current actual knowledge of E. Xxxxxxx Xxxxx, neither Seller nor without any prior owner requirement as to review of the Real Property has manufactured or disposed personal files of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental lawsXx. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate Xxxxx or any other investigationsfiles of Seller or any affiliate of Seller. Nothing herein is intended Seller shall not intentionally engage in any conduct which reasonably could be expected to diminish cause any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s foregoing representations and warranties made herein or to be untrue in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and respect as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Samples: Commercial Land Purchase and Sale Agreement (Applied Molecular Evolution Inc)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser, as of the Purchaser date hereof, and as followsof the Closing Date:
(a) 13.1 Seller is and on the Closing Date will be the owner of the Real Property, subject only to the Permitted Exceptions.
13.2 Seller owns the Personal Property, free and clear of all encumbrances, except security interests which will be discharged on or before the Closing Date.
13.3 Seller is a corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transaction;State of Delaware.
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) 13.4 Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” nor a “foreign corporation” as that term is those terms are defined in Section 7701 of the Internal Revenue Code Section 1445(f)(3)of 1986, as amended.
13.5 Neither Seller nor any of its affiliates, nor is the sale any of the Real Property subject to any withholding requirements imposed by the Internal Revenue Codetheir respective partners, includingmembers, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral shareholders or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or landother equity owners, and (ii) Seller has not made any commitment none of their respective employees, officers, directors, representatives or representation to any government authorityagents is, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and nor will not bethey become, a person or entity with whom Purchaser is United States persons or entities are restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act regulations of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List; and) or under any statute, executive order (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting 3877973.10 Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action, and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(y) As 13.6 Other than the Leases and any other leases, modifications, renewals and extensions that Purchaser has consented to in accordance with Section 11 hereof, there are no other leases or possessory rights of others regarding the Real Property. To Seller’s knowledge, there are no material defaults by Seller or, by the tenants under the Leases.
13.7 Other than this Agreement, Seller has not entered into any other contracts for the sale of the Real Property, nor are there any rights of first refusal or options to purchase the Real Property that might prevent the consummation of this Agreement.
13.8 This Agreement and all documents executed by Seller that are to be delivered to Purchaser at the Closing are, or at the time of Closing will be, duly authorized, executed and delivered by Seller, and are, or at the time of Closing will be, legal, valid and binding obligations of Seller, and do not, and at the time of Closing, will not, violate any provisions of any contract or judicial order to which Seller is a party or to which Seller is subject. The individual executing this Agreement on behalf of Seller has the Company (i) shall have paid all known outstanding invoices except for those set forth right, power and authority to execute this Agreement on Schedule 6.2(y) attached heretobehalf of Seller, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause bind Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingterms hereof.
Appears in 1 contract
Representations and Warranties by Seller. 5.1 Seller hereby represents makes the representations and warrants to warranties in this Paragraph 5, each and for all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the benefit of the Purchaser as followsClosing:
(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in State of Kansas which it is formed, with all necessary 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, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Neither the entering into this Agreement constitutes when executed and delivered by 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 valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;party.
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller Each of the TransactionProperties is zoned to permit the operation of a restaurant thereon, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner and all improvements on each of the Transferred Interest Properties conform to all existing building, zoning, environmental or other laws and has ordinances, and are in good operating condition and repair as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of received any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material presently uncured violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materialsthose relating to zoning, strippingsbuilding, rocksfire, stumps or concretehealth and safety) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas of any governmental, quasi-governmental authority bearing on the Real Property have been filled construction, operation, ownership or altered without a permit from use of any of the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableProperties.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(md) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has not received no written any notice of any pending widening, modification or threatened governmental proceedings realignment of any street or other fact highway contiguous to either property or condition that any existing or proposed eminent domain proceeding which would limit such accessresult in a taking of all or any part of any of the Properties.
(oe) There are no attachmentsNone of the easements, executionscovenants, assignments for conditions, restrictions or agreements to which any of the benefit Properties is subject interferes with or is breached by the use or operation of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;Properties as presently used and operated as a restaurant.
(pf) Except as set forth in Schedule 6.2(p)Seller has not been served with any litigation, to Seller’s Knowledgeand no arbitration proceedings have been commenced, the Real Property contains no threatened which do or endangered species or endangered or protected habitats or items will affect any aspect of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured Properties or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement 's ability to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or its obligations under this Agreement. In addition, Seller is under no obligation 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 Purchaser perform its obligations under this Agreement Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to clean up all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or perform assessments for capital or hookup costs relating to such facilities.
(h) There are not any remediation written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports Properties which have not been heretofore disclosed by Seller to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing Buyer in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;writing.
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral 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 written contract materialmens' liens being asserted or agreement exists that contains an unperformed obligation or contingent liability relating filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Real Property, including, without limitation, contributions of money or land, and Closing.
(iij) Seller has not made been served or notified by any commitment governmental or representation to quasi-governmental authority that (i) any government authorityof the Properties, or any adjoining property, contains or surrounding property ownermay 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, which would used or maintained on, in or under any way be binding 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 Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute or under all the contracts for the purchase of or any portion of the Real Property, and as any of the date hereof, Seller is not aware Properties or the area surrounding any of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;Properties.
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(yk) As of the Closingused in this Agreement, the Company (i) terms "Environmental Regulations" and "Hazardous Materials" shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.following meanings:
Appears in 1 contract
Samples: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
Representations and Warranties by Seller. 15.1 Seller hereby represents and warrants to and for the benefit of the Purchaser as followsBuyer that:
(a) 15.1.1 Seller is duly organized, validly existing and in good standing under has the laws of the jurisdiction in which it is formed, with all necessary full power and authority to execute execute, deliver and deliver perform this Agreement, Agreement and to perform its obligations hereundercarry out the transactions contemplated hereby;
15.1.2 the execution and delivery of this Agreement by Seller and the carrying out by Seller of the transactions contemplated hereby have been duly authorized by all requisite corporate action, and to consummate the Transaction;
(b) This this Agreement constitutes when has been duly executed and delivered by Seller and constitutes the Seller a legal, valid and binding obligation of the Seller, is legally binding, and is and will be enforceable against it in accordance with its termsthe terms hereof, except as enforceability may be limited subject to limitations imposed by applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws and equitable principles relating to or affecting the enforcement of creditors’ ' rights generally and general principles of equity;
15.1.3 to the discretion best of Seller's knowledge, no authorization, consent, approval or order, or notice to or registration, qualification, declaration or filing with, any governmental authority, is required for the execution, delivery and performance by such party of this Agreement or the carrying out by such party of the courts in granting equitable remediestransactions contemplated hereby;
(c) The execution 15.1.4 to the best of Seller's knowledge, none of the execution, delivery and delivery performance by the Seller of this Agreement Agreement, the compliance with the terms and provisions hereof, and the consummation by the Seller carrying out of the Transactiontransactions contemplated hereby, materially conflicts or will not constitute (conflict with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in a material breach or violation of any of the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both)terms, conditions, or constitute a default under (i) provisions of any agreementlaw, commitment governmental rule or understanding to which the Transferred Interest regulation or the Company is subject organizational document, as amended, or bylaws, as amended, of Seller or any applicable order, writ, injunction, judgment or decree of any court or governmental authority against Seller or by which it or any of its properties is bound, or (ii) any applicable law;
(d) loan agreement, indenture, mortgage, bond, note, resolution, contract or other agreement or instrument to which such Seller is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or will result in the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear imposition of any and all encumbrancesthird party lien upon any of its properties; and
15.1.5 there are no legal proceedings, liensarbitrations, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, administrative actions or other proceeding proceedings by or before any governmental or regulatory authority or agency, now pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes knowledge of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller party or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental lawsits subsidiaries that if adversely determined, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed could reasonably be expected to respond to have a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to material adverse effect on Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement 's ability to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or its obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Samples: Development and Purchasing Agreement (Comdial Corp)
Representations and Warranties by Seller. Seller hereby represents and warrants to Buyer that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing:
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 no action, suit or proceeding pending or threatened or asserted against Seller, affecting Seller or any portion of the 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 not received any notices and has no current actual knowledge of any condemnation actions, special assessment or improvement districts in formation or contemplated or other impositions of any nature 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, regulation, law or statute from any governmental agency pertaining to the Property or any portion thereof. Seller has not received any notice of any governmental regulation or order restricting the operation of the Property in the manner in which the Property is being operated on the date of this Agreement. To Seller's current actual knowledge the use of the Property conforms to applicable building and zoning codes without the necessity for a variance or reliance upon a preexisting nonconforming use of the Property;
d. Except with respect to the Loan, there are no liens against or security interests in the Property. Prior to the Closing, Seller shall not create or voluntarily permit to be created any liens, easements or other condition affecting any portion of the Property 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 benefit normal use and operation of the Purchaser as follows:Property are installed to the property lines of the Property, are connected, and run over, through, or under a public street or alley to the Property from the location at which such utility are connected to the main public utility line;
(a) f. The documents, reports, and instruments delivered to Buyer under Article III of this Agreement are, to the best of Seller's knowledge, true, accurate and complete in every respect;
g. Seller is duly organizedthe owner of good and marketable fee simple title to the Property, validly existing 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 good standing under the laws lessor's interest in the Tenant Leases has been assigned to the holder of the jurisdiction Loan, Seller is the sole owner of the lessor's interest in which it is formed, with all necessary power and authority to execute and deliver this Agreementof the Tenant Leases and, to perform its obligations hereunderSeller's current actual knowledge, all of such leases are in full force and to consummate effect without current default by either Seller or the Transactionrespective tenants;
(b) This Agreement constitutes when executed h. To Seller's current actual knowledge, Seller is not in default under any indenture, 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 delivered by which in any way affects the Property. Seller is not a valid and binding obligation 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 Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remediesProperty;
(c) The i. To Seller's current actual knowledge, the execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transactiontransactions contemplated hereby do not, and will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict withnot, result in a breach of any of the acceleration of terms or entitle any Party to accelerate (whether after the giving of provisions of, or constitute a default or a condition which upon notice or lapse of time or both), or constitute both would ripen into a default under (i) any indenture, agreement, commitment instrument or understanding obligation to which the Transferred Interest or the Company Seller is subject a party or by which it 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 (ii) regulation applicable to Seller of any applicable law;
(d) Seller is the owner portion of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear Property of any and all encumbrances, liens, claims;
(e) The Company will be, at the time court or of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, any federal or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity state or before any municipal regulatory body or administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the governmental body having jurisdiction over Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) 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 Knowledge's current actual knowledge, neither Seller nor has paid all taxes, charges and assessments (special or otherwise) required to be paid or will prior to Closing, pay to any prior owner of taxing authority which could in any way now or hereafter constitute a lien against the Real Property or any part thereof (except for taxes and assessments for the current year not currently due and payable). Seller has manufactured not received any notice from any taxing authority or disposed of governmental agency asserting that Seller has failed to file or has improperly filed any Hazardous Substance on the Real Propertytax return or report required to be filed by it, or stored that it has not paid all taxes, charges or used 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 Hazardous Substance on the Real Property in such quantitiestaxes, concentrations, forms, levels, charged or otherwise in a manner which is in violation of any applicable environmental laws. To assessments against Seller’s Knowledge, the Real Property is in compliance with all environmental laws;
1. Except as set forth may be shown in Schedule 6.2(s)the Environmental Reports, Seller warrants and represents to Buyer that to the best of Seller's knowledge there are no Hazardous Materials on, in or under the Property; that Seller has received 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 written notices from cleanup or remediation of Hazardous Materials has ever been ordered or undertaken on or 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 latent physical or mechanical defects in the Property of 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 governmental authority having jurisdiction over the Real Propertylaw, ordinance, rule or regulation, including but not limited to the effect that the Real Property is not in compliance with any of such environmental lawsFederal Water Pollution Control Act (33 U.S.C.ss.1251, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(set seq.), to Seller’s KnowledgeResource Conservation and Recovery Act (42 U.S.C.ss.6901, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Periodet seq.), Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are foundSafe Drinking Water Act (42 U.S.C.ss.3000f, Purchaser will furnish Seller with a copy of the test results and Selleret seq.), at Seller’s optionToxic Substances Control Act (15 U.S.C.ss.2601, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminatedet seq.), the Deposit shall be returned to the Purchaser Clean Air Act (42 U.S.C.ss.7401, et seq.), Comprehensive Environmental Response, Compensation and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consentLiability Act (42 U.S.C.ss.9601, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledgeet seq.), the information Superfund Amendments and materials furnished and to be furnished to Purchaser by SellerReauthorization Act of 1986, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; Pub.X.Xx. 99-499 (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3"SARX"), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue CodeHazardous Materials Transportation Act (49 U.S.C.ss.1801, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(vet seq.), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real PropertyCalifornia Health and Safety Codess.25100, includinget seq.;ss.39000, without limitationet seq., contributions of money or land, California Safe Drinking Water and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Toxic Enforcement Act of 20011986 (California Health and Safety Codess.25249.5, H.R. 3162et seq.), Public Law 107-56 California Water Code (commonly known as the “USA Patriot Act”ss.13000 et seq.) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism "Environmental Laws”"), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closingalso any asbestos or asbestos-containing materials, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached heretoradon gas, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing petroleum or petroleum fractions, whether or not defined as they are received"toxic", to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities"hazardous", obligationsor "pollutant" in any such law, claims ordinance, rule or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.regulation;
Appears in 1 contract
Samples: Rescission of Election to Terminate & Reinstatement of Purchase Obligation (Sports Arenas Inc)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser as of the date hereof that, except as identified on Schedule 8.1, which Seller shall complete and deliver to Purchaser as followswithin ten (10) days following the Effective Date:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware and is qualified to do business in which it is formedeach state where the Properties are located;
(b) Seller has the legal right, with all necessary power and authority to execute enter into this Agreement and deliver this Agreement, the Leases and to perform all of its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation Leases and the performance by the Seller of the Transactionits obligations hereunder and thereunder, (x) has been duly authorized, and (y) will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of, any of the acceleration terms, conditions and provisions of its organizational and governance documents or entitle any Party to accelerate (whether after the giving of notice law, statute, rule or lapse of time or both)regulation, or constitute a default under (i) order, judgment, writ, injunction or decree of any agreementcourt or governmental instrumentality, commitment or understanding any contract, agreement or instrument to which the Transferred Interest or the Company it is subject a party or by which it is bound, or to which it or any portion of its property is subject and (iiz) will not require the consent, approval, authority or order of any applicable law;
court or governmental agency that has not been previously obtained in writing or delivered to the Purchaser; (c) Seller has not received written notice of any pending condemnation, eminent domain or similar proceedings with respect to the Properties, and has no actual knowledge that any such proceedings are threatened or contemplated; (d) Seller is not a "foreign person" within the owner meaning of Section 1445(f)(3) of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
Code; (e) The Company will beneither Seller nor AAG has (i) commenced a voluntary case, at or to Seller's knowledge, had entered against it a petition for relief under any federal bankruptcy act or similar petition order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, (ii) caused, suffered or consented to the time appointment of Closinga receiver, the fee owner trustee, administrator, conservator, liquidator, or similar official in any federal, state or foreign judicial or nonjudicial proceeding, to hold, administer and/or liquidate all or substantially all of the Real Propertyits asset, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except or (iii) made an assignment for the Permitted Exceptions;
benefit of creditors; (f) There the Properties are not subject to any agreements of sale, or any options or other rights of third parties to acquire any interest therein (other than pursuant to this Agreement and the rights of Franchisor under its franchise agreements with AAG); (g) there are no adverse or other parties in possession of the Properties, or of any part thereof, except Seller, and to Seller's knowledge no party has been granted, and there does not currently exist, any license, lease or other right relating to the possession of the Properties, or any part thereof other than as set forth in Seller's agreements with Franchisor; (h) Seller is not a party to any litigation, arbitration or administrative proceeding, and no litigation, action, arbitration or other administrative proceeding is pending or, to Seller's knowledge, threatened: (A) in which Seller is adverse to any person or entity having or claiming any past, present or future interest in any of the Properties, (B) which affects or questions Seller’s Knowledge's title to or current use of any of the Properties or Seller's ability to perform its obligations under this Agreement, threatened or (whether such matters are brought C) otherwise relating to any claim for damages for personal injury or property damage arising from or at lawany Property; (i) except as disclosed in the Environmental Reports (i) to Seller's knowledge, no Property contains any Hazardous Substances in equity or before violation of any applicable Environmental Laws, (ii) Seller has not received any notice of, and has no actual knowledge that, any administrative agency or other Governmental Authority governmental authority has determined that there has been (or instrumentalityis investigating whether there is) relating to the Real a presence at, release or threat of release from, or placement on or in, any Property of any Hazardous Substances, or the Transferred Interest (except as disclosed to Purchaser);
(g) No brokerany Hazardous Substance in violation of any applicable Environmental Laws, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) to Seller's knowledge, no underground storage tanks are located on any Property; (j) to Seller's knowledge, Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no received written notice of any threatened taking breach of any reciprocal easement agreement, development agreement, operating agreement or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency similar agreement affecting the Real Property or Seller;
which has not been cured; (jk) Except as set forth in Schedule 6.2(j), Seller has not received no written notice, nor, to Seller’s Knowledge, is Seller in notice from any governmental or regulatory agency of any material violation of any law, order, ruling, ordinance, rule regulation or regulation statutory requirement with respect to Seller the physical condition of any Building, or the Real Property operation of Seller's business thereon, which has not been cured; (l) Neither Seller nor, to the best of Seller's knowledge, any of Seller's members, are an entity or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Propertyperson: (i) none that is listed in the Annex to, or is otherwise subject to the provisions of the Real Property has been excavatedExecutive Order 13224 issued on September 24, 2001 ("EO13224"); (ii) no landfill was deposited whose name appears on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps Treasury Department's Office of Engineers and/or the St. Xxxxx River Water Management DistrictForeign Assets Control ("OFAC") most current list of "SPECIFICALLY DESIGNATED NATIONAL AND BLOCKED PERSONS" (which list may be published from time to time in various mediums including, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has but not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Sellerlimited to, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(nOFAC website, http://www.treas.gov/offices/enforcement/ofac/sdn/t00xxx.xxx), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (qxxx) There are no unrecorded leases effecting xxx xxxxxxx, threatens to commit or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” supports "TERRORISM," as that term is defined in Internal Revenue Code Section 1445(f)(3), nor EO13224; (iv) is the sale subject to sanctions of the Real Property subject United States government or is in violation of any federal, state, municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations relating to any withholding requirements imposed by the Internal Revenue Codeterrorism or money laundering, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute EO13224 and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 ; or (commonly known as the “USA Patriot Act”v) who is otherwise affiliated with any entity or person listed above (any and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation all parties or persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company described in subsections (i) - (v) above are herein referred to as a "PROHIBITED PERSON"). Neither Seller nor its members shall have paid all known outstanding invoices except knowingly: (A) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for those the benefit of a Prohibited Person; or (B) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth on Schedule 6.2(y) attached hereto, in EO13224; and (iim) shall have reserved sufficient sums the Properties are not now in whole or in part under lease to pay all accrued invoices and shall cause Seller any person, nor are there any equipment leases or service contracts (other than those relating to promptly pay the same after Closing as they are received, Excluded Property or those which can be cancelled upon sixty (60) days or less notice without penalty) relating to the extent they relate Properties to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse which Seller is a party; (n) The historical financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously statements provided to Purchaser by Seller are consistent with those internally prepared by Seller and to be materially misleadingSeller's knowledge are true, accurate and complete.
Appears in 1 contract
Samples: Assignment and Assumption of Purchase Agreement (Aei Income & Growth Fund 24 LLC)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser as of the Purchaser as follows:
(a) date hereof that: Seller is a national banking association, duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is formedUnited States of America; Seller has the legal right, with all necessary power and authority to execute enter into this Agreement and deliver this Agreement, to perform all of its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation performance by the Seller of the Transactionits obligation hereunder, (x) has been duly authorized, and (y) will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of, any of the acceleration terms, conditions and provisions of its organizational and governance documents or entitle any Party to accelerate (whether after the giving of notice law, statute, rule or lapse of time or both)regulation, or constitute a default under (i) order, judgment, writ, injunction or decree of any agreementcourt or governmental instrumentality, commitment or understanding any contract, agreement or instrument to which the Transferred Interest or the Company it is subject a party or by which it is bound, or to which it or any portion of its property is subject and (iiz) will not require the consent, approval, authority or order of any applicable law;
(d) Seller is court or governmental agency that has not been previously obtained in writing or delivered to the owner Purchaser; there are no litigations, governmental or administrative proceedings or arbitrations presently pending or, to Seller's actual knowledge, threatened in writing with respect to any of the Transferred Interest Property (exclusive of the proceedings against tenants, 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) and Seller has delivered copies of all relevant documents, filings and other materials relating to any such proceeding or arbitrations (regardless of whether adequate insurance coverage is available and inclusive of the proceedings set forth on Schedule 10.1 (c) hereto). Purchaser shall have no liability under, or any obligation to pursue, such litigation or proceedings, except as it may elect under Section 6.2 or Section 6.3 hereof; Seller has not received written notice of any pending condemnation, eminent domain or similar proceedings with respect to the Property, and has as no actual knowledge that any such proceedings are threatened or contemplated; there are no unrecorded rights of first offer to purchase, rights of first refusal to purchase, purchase options or similar rights or contractually required consents to transfer pertaining to the Closing DateProperty (other than that set forth in the Citi Office Lease); the fixtures, title furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to such Transferred Interest, free or located on the Property (other than the Excluded Property which is not being transferred) have been fully paid for and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, are owned by Seller free and clear of all liens and encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Boston Properties Inc)
Representations and Warranties by Seller. As an inducement to Purchaser to enter into this Agreement and to purchase the Property, with the intention that Purchaser rely on Seller’s representations and warranties set forth herein and that Seller’s representations and warranties herein survive the Closing (whether or not contained in any document delivered at Closing), Seller hereby continuously represents and warrants to and for the benefit Purchaser as of the Purchaser Effective Date, as of the Closing Date, and at all times between the Effective Date and the Closing Date as follows:
(a) Seller is a Delaware corporation, duly organized, validly existing existing, and in good standing under the laws of the jurisdiction state of its organization and is qualified to transact business in which it is formedthe state of Alabama; Seller has all requisite power and authority, with has taken all actions required by its organizational documents and applicable law, and has obtained all necessary power and authority consents, to execute and deliver this Agreement, to perform its obligations hereunderSeller’s undertakings pursuant to this Agreement, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by transactions contemplated in this Agreement; neither the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and nor the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under transactions contemplated hereby (i) conflicts with, results in a breach of the terms, conditions, or provisions of, constitutes a default under, or results in a termination of, any trust, agreement, commitment or understanding instrument to which the Transferred Interest or the Company Seller is subject a party or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of bound (other than any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed mortgage financing to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the paid off at Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) violates any restriction to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property which Seller is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Propertysubject; (iii) no debris constitutes a violation of any code, resolution, law, statute, regulation, ordinance, judgment, rule, decree, order, agreement, organizational document, operating agreement, or materials (including, without limitation, organic materials, strippings, rocks, stumps bylaw applicable to Seller or concrete) have been buried upon any portion of the Real Property; or (iv) results in the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice creation of any pending lien, charge, or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit encumbrance upon any portion of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale ) of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code. This Agreement is the legal, includingvalid, and binding agreement of Seller, enforceable against Seller in accordance with its terms;
(b) There are no actions, suits or proceedings pending or, to Seller’s knowledge, threatened against, by or affecting Seller which affect title to the Property or which question the validity or enforceability of the Agreement or of any action taken by Seller under this Agreement, in any court or before any governmental authority, domestic or foreign.
(c) To Seller’s actual knowledge, there are no pending, threatened or contemplated actions (including without limitation condemnation, environmental claims or investigations, or claims of involuntary liens) involving all or any portion of the Property; nor to Seller’s knowledge is there any existing, proposed or contemplated plan to widen, modify or realign any public rights-of-way located adjacent to any portion of the Property.
(d) Seller has not entered into any lease (other than the Boeing Lease or IDB Lease) or other agreement for the use, occupancy or possession of the Property which is presently in force with respect to all or any portion of the Property.
(e) Seller has not entered into any management, maintenance, service or other contracts with respect to the Property other than those, if any, set out on Exhibit “B” attached hereto. Except as set forth on Exhibit “B” all such contracts, if any, are terminable upon no more than thirty (30) days notice. Upon written notice from Purchaser given no later than thirty (30) days prior to the Closing Date, Seller agrees to terminate as of the Closing Date any of the Service Agreements which Purchaser specifically elects in such written notice not to assume.
(f) Seller does hereby warrant and represent to Purchaser that:
(i) Except to the extent that the same may have been located on or may have constituted apart of the Property on the date Seller purchased the Property from its previous owner, no Hazardous Materials (hereinafter defined) have been, are, or will be prior to the Settlement Date, contained in, treated, stored, handled, located on, discharged from, or disposed of on, or constitute a part of , the Property, except in accordance with all applicable laws. As used herein, the term “Hazardous Material” shall include without limitation, any asbestos, urea formaldehyde foam insulation, flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related or unrelated substances or materials defined, regulated, controlled, limited or prohibited in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), as amended (42 U.S.C. Sections 9601, et seq.), the hazardous Materials Transportation Act, as amended(49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (RCRA), as amended (43 U.S.C. Section 1445 thereof6901, et seq.), the Clean Water Act, as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401, et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq), and in the rules and regulations adopted and publications promulgated pursuant thereto to and in the rules and regulations of the Occupational Safety and Health Administration (OSHA) pertaining to occupational exposure to asbestos, as amended, or in any other federal, state or local environmental law, ordinance, rule ,or regulation now or hereafter in effect;
(ii) No underground storage tanks, whether in use or not in use, are located in, on or under any part of the Property;
(iii) All of the Property complies and will through the Closing Date comply in all respects with applicable environmental laws, rules, regulations, and court or administrative order;
(iv) There are no pending claims or threats of claims by private or governmental or administrative authorities relating to environmental impairment, conditions, or regulatory requirements with respect to the Property; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v)Seller shall give immediate oral and written notice to Purchaser of its receipt of any notice of a violation of any law, to Seller’s Knowledge: (i) No oral rule or written contract regulation covered by this paragraph, or agreement exists that contains an unperformed obligation or contingent liability of any notice of other claim relating to the Real environmental condition of the Property, including, without limitation, contributions or of money or land, and (ii) Seller has not made its discovery of any commitment or representation to any government authority, or any adjoining or surrounding property owner, matter which would make the representation, warranties and/or covenants herein to be inaccurate or misleading in any way be binding on Purchaser;respect.
(wg) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real PropertyEXCEPT AS EXPRESSLY SET FORTH HEREIN, and as of the date hereofSELLER DOES NOT, Seller is not aware of any defaultBY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, or an eventAND SELLER SHALL NOT, except for the passage of time or giving of noticeBY THE EXECUTION AND DELIVERY OF ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION WITH CLOSING, or bothMAKE ANY REPRESENTATION OR WARRANTY, would constitute a defaultEXPRESS OR IMPLIED, in connection with the existing Purchase Contracts;
OF ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE PROPERTY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER MAKES, AND SHALL MAKE, NO EXPRESS OR IMPLIED WARRANTY AS TO MATTERS OF ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION (x) Seller is notINCLUDING, and will not beWITHOUT LIMITATION, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001LAWS, H.R. 3162RULES, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism FinancingREGULATIONS, effective September 24ORDERS AND REQUIREMENTS PERTAINING TO THE USE, 2001 and regulations promulgated pursuant thereto (collectivelyHANDLING, “Anti-Terrorism Laws”GENERATION, TREATMENT, STORAGE OR DISPOSAL OF ANY TOXIC OR HAZARDOUS WASTE OR TOXIC, HAZARDOUS OR REGULATED SUBSTANCE), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY, (y) As of the ClosingHEREINAFTER COLLECTIVELY CALLED THE “DISCLAIMED MATTERS”. PURCHASER AGREES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE WARRANTY DEED CONVEYING THE IMPROVEMENTS, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached heretoWITH RESPECT TO THE PROPERTY, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are receivedPURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, to the extent they relate to the time period prior to ClosingEITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER. There are no undisclosed liabilitiesEXCEPT AS EXPRESSLY SET FORTH HEREIN, obligationsSELLER SHALL SELL AND CONVEY TO PURCHASER, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingAND PURCHASER SHALL ACCEPT, THE PROPERTY “AS IS,” “WHERE IS,” AND WITH ALL FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY.
Appears in 1 contract
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser as of the Purchaser date of this Agreement as follows:
(a) Seller is an Illinois limited partnership, duly organizedformed, validly existing and in good standing under the laws Laws of the jurisdiction in which it is was formed, with all necessary power and has the full 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, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Agreement and the 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 constitutes when executed and delivered by the Seller a legal, valid and binding obligation of the Purchaser, this Agreement constitutes a legal, valid and binding obligation of Seller, is legally binding, and is and will be enforceable against Seller in accordance with its terms, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws and equitable principles affecting the enforcement of creditors’ ' rights generally and the discretion by general principles of the courts in granting equitable remedies;equity.
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, transactions contemplated hereby by Seller do not and will not constitute (i) violate or conflict with the giving of notice Seller's organizational documents or the lapse of time (ii) violate or bothconflict with any Laws or any governmental regulation or permit applicable to Seller or (iii) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both)a breach of, or constitute a default under (i) under, any agreement, commitment provision of any contract or understanding other instrument to which the Transferred Interest or the Company Seller is subject a party or by which it is bound, which breach or default would prevent or materially interfere with Seller's performance hereunder or (iiiv) result in the creation or imposition of any applicable law;lien, charge or encumbrance pursuant to the terms of any such contract or other instrument which lien, charge or encumbrance would prevent or materially interfere with Seller's performance hereunder.
(d) Except as specified 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, Seller is has not received written notice of any actions, suits or proceedings, either pending or threatened, against Seller in connection with the owner Loan, including, without limitation, any actions, suits or proceedings which might question the validity of this Agreement or the consummation of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;transactions contemplated hereby.
(e) The Company will be, at As of the time of Closingdate specified on Exhibit A (the "Pricing Date"), the fee owner (i) unpaid principal balance of the Real PropertyLoan, free and clear (ii) the amount of all encumbrancesinterest accrued on the Loan which remains unpaid, liens, mortgages, security interests(iii) the rate or rates at which interest on the unpaid principal amount of the Loan accrues or is payable, and claims, except for (iv) the Permitted Exceptions;maturity date with respect to the Loan are as specified on Exhibit A hereto.
(f) There is no litigationTo the best of Seller's knowledge, action(i) the Loan Documents specified on Schedule 7(f) hereto constitute all material Loan Documents, (ii) such Loan Documents have not been modified or other proceeding pending oramended, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed described on Schedule 7(f) hereto, and (iii) the copies of such Loan Documents which are attached to Purchaser);Schedule 7(f) or which have previously been delivered to Purchaser are true and correct in all material respects.
(g) No brokerExcept as specified on Schedule 7(g) or 7(h) or as previously disclosed to Purchaser in writing, agentto the best of Seller's knowledge, consultant without investigation or 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 person has assisted laws affecting the Seller enforcement of creditors' rights generally and by general principles of equity, regardless of whether such realization is considered in procuring, negotiating a proceeding at law or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; equity.
(h) Seller represents, except Except as set forth on Schedule 6.2(h)7(h) or as previously disclosed to Purchaser in writing, to the best of Seller’s Knowledge's knowledge, without investigation or inquiry with respect thereto, (i) no site Seller has not commenced or area improvements have been constructed threatened to commence any actions, suits or installed by any public authorityproceedings in connection with the Loan Documents, the cost of which may be assessed in whole or in part against any part of the Real Property; and (ii) to Seller’s Knowledgethere are no valid, except for effective and enforceable orders, injunctions or decrees of any impact federal, state, municipal or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject local court or arbitral body with respect to the imposition of impact Loan or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real PropertyLoan Documents.
(i) There Seller (i) is no pendingthe sole owner and holder of the Loan, and Seller has no written notice free of any threatened taking encumbrances, liens, pledges, charges or condemnation 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 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 Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;Loan provided for herein.
(j) Except as set forth specified on Schedule 7(j) hereto or as previously disclosed to Purchaser in Schedule 6.2(j), Seller has received no written notice, norwriting, to the best of Seller’s Knowledge's knowledge, without investigation or inquiry with respect thereto, neither Borrower nor any Guarantor has filed or is Seller in material violation the subject of any law, order, ruling, ordinance, rule proceeding under any state or regulation with respect to Seller federal bankruptcy or the Real Property or the use thereof;insolvency Law.
(k) To Except as specified on Schedule 7(k) hereto or as previously disclosed to Purchaser, to the best of Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including's knowledge, without limitationinvestigation or inquiry with respect thereto, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property Seller has not contained a bury received any written notice of any pending or borrow pit; and (v) no wetlands threatened condemnation or other protected areas on similar proceeding affecting the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableProperty.
(l) Except as set forth specified on Schedule 7(l) hereto or as previously disclosed to Purchaser in Schedule 6.2(l)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 the Real Property 's knowledge, without investigation or inquiry, Seller has not been, and is not being, assessed or taxed under received notice that any agricultural classification or conservation exemption or similar valuation or programof 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 Xxxxx X. Xxxxxxxx on behalf of Seller has filed all federalto the Borrower, state and local tax returns as required by law represent the only written prepayment correspondence from Seller to Borrower with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal lawsLoan; (qii) There are there have been no unrecorded leases effecting or promised oral prepayment communications between Seller and Borrower which differed in connection any material respect from the letters referred to above; and (iii) with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner exception of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Propertyletters dated November 27, or stored or used any such Hazardous Substance on the Real Property in such quantities1996 and December 10, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s)1996, Seller has received no written notices prepayment correspondence from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not Borrower. All warranties and representations of Seller in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth this Section 7 are true and correct in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and respects as of the date hereof, Seller is not aware of any defaultand, or an eventwith respect to clauses (a) through (c) above, except for the passage of time or giving of notice, or both, would constitute a default, shall continue to be true and correct in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known all material respects as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the ClosingClosing Date. Subject to the provisions of Section 17 hereof, the Company representations and warranties of Seller contained in this Section 7 shall survive the Closing for a period of ninety (i90) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(ydays; provided, however, that any claim hereunder based upon such representations and warranties must be made within such ninety (90) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingday period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Balcor Pension Investors V)
Representations and Warranties by Seller. Seller hereby represents and warrants warrants, subject as appropriate to and for the benefit consent of the Purchaser as followsAPS to provisions of their Agreement that:
(a) All corporate action by Seller is and its Board of Directors to authorize the execution, delivery and performance of this Agreement by Seller have been duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transaction;taken.
(b) This Agreement constitutes when executed and delivered by To Seller's Knowledge, the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation performance by the Seller of this Agreement and the Transaction, consummation of the transactions herein contemplated will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both)terms of, or constitute a default under (i) or violation of, any agreementlaw or regulation of any governmental authority, commitment domestic or understanding foreign, or the Articles of Incorporation or By-Laws of Seller or any material agreement or instrument to which the Transferred Interest or the Company Seller is subject a party or by which Seller is bound or to which it is boundsubject; nor will it give to others any interests or rights, including rights of termination, acceleration or cancellation, in or with respect to any-of the properties, assets, agreements, contracts or business of Seller. To Seller's Knowledge, other than as set forth in Exhibit D hereto, no consent of any governmental authority is required to be obtained on the part of the Seller to permit the transactions contemplated by this Agreement.
(iic) Other than as set forth in Exhibit D hereto, Seller has good and marketable title to all the Assets in each case subject to no security interest, lien, pledge, restriction, charge or encumbrance all of which will by paid at Closing. To Seller's Knowledge, none of the Assets nor the operation or maintenance thereof, contravenes any applicable law;administrative regulation or any provision of law in such a way as to materially and adversely affect the business or properties of Seller or involves any hazardous materials or waste.
(d) Seller is the owner of the Transferred Interest not in default under any Ownership Agreement or Contract and has as of the Closing Datethere have been no claims or defaults and there are no existing facts or conditions to Seller's Knowledge which, title to such Transferred Interestif continued or on notice, free and clear of will result in any and all encumbrances, liens, claims;claims or defaults under any Ownership Agreement or Contracts.
(e) The Company will be, at tangible personal property included in the time of Closing, the fee owner of the Real Property, free Assets (except inventory) is in good and clear of all encumbrances, liens, mortgages, security interests, useable condition and claims, except for the Permitted Exceptions;has been properly maintained.
(f) There is no litigationTo Seller's Knowledge, actionthe execution, delivery and performance by Seller of this Agreement, and the consummation of the transactions herein contemplated, will not conflict with or result in the breach or violation of, any judgment, order, writ, injunction or decree of any court or governmental department, commission, board, bureau, agency, or other proceeding pending orinstrumentality, domestic or foreign, and Seller is not in default with respect to any such judgment, order, writ, injunction or decree. Other than as set forth on Exhibit D and the Knowledge of Seller’s Knowledge, threatened (whether such matters are brought no governmental agency has at lawany time challenged or questioned the legal right or proposed any restriction on the legal right of the Seller to produce, manufacture, offer or sell the product, in equity the present manner or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);style thereof.
(g) No brokerExhibit E correctly sets forth a list of all Ownership Agreements, agentand all patents, consultant patent applications, copyrights, copyright registrations and applications, trademarks, trademark registrations and applications, trade names or commercial names, and any other intangible assets (except for computer programs, industrial models, process and design, trade secrets and know-how to manufacture the Products), in the Territory for each Product currently owned, licensed, possessed, used or held by Seller (collectively, the "Listed Intangibles"). As of the Closing, Seller will transfer to the Buyer all computer programs industrial models, process and designs, trade secrets and know-how which are dedicated exclusively to the manufacture of the Product as they manufactured (the "Manufacturing Intangibles") and the Listed Intangibles. Other than as set forth in Exhibit E hereto, Seller owns the entire right, title and interest in and to the Listed Intangibles and the Manufacturing Intangibles (collectively the "Intangibles"), and there are no licenses, sublicenses or grants (including to any contractors who manufacture any of the Products) relation to the use of any of the same except as set forth on Exhibit E" hereto and none of them so owned are to the Knowledge of Seller being infringed by any third party or subject to a pending lawsuit or proceeding alleging any infringement or the rights of third parties. The Seller owns all right, title and interest in all Intangibles necessary for the manufacture of the Product in the Territory, including but not limited to all formulas and know-how. To Seller's Knowledge, the conduct of the business of Seller relating to the Assets does not infringe any patent, patent rights, copyright, trademark, trade secret, trade right, trade name, commercial name, trade secret or other intangible assets. On the Closing, all Intangibles shall be transferred and disclosed to Buyer by Seller including those in the possession of manufacturing contractors.
(h) The Seller is not obligated, absolutely or contingently, to any person for a finder's fee, brokerage commission, or other similar person has assisted payment in connection with the transactions contemplated by this Agreement, and the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser Buyer harmless against and from all claimsany such payments or claims for such payments made or threatened.
(i) Buyer, demands, causes subject to section 16 hereof shall purchase from Seller that inventory of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as Product set forth on Schedule 6.2(hExhibit F to be agreed upon between the parties at those prices to be set forth on such Exhibit F. A physical count of such inventory shall be taken on or about June 30, 1999. The inventory of Seller on June 30, 1999 (the "Inventory") will consist of items of quality which would have been usable or saleable in the ordinary course of business of Seller if Seller had remained in the business of selling the Inventory. All of the items included in the inventory (including the Inventory) on the dates of an inventory are or will be the property of Seller. Inventory items shall include finished goods and work in process, raw materials, labels, display materials, bottles, bottling caps, packaging, shipping cartons and stickers and other supplies and components necessary to manufacture the Product as well as packaging materials and finished Product. The foregoing warranties and those set forth in Section 9 and Section 16 hereof are the sole and exclusive warranties offered by Seller regarding any of the Inventory purchased hereunder. All other warranties, including, but not limited to, any implied warranty of merchantability and fitness are disclaimed.
(j) Set forth on Exhibit G annexed hereto is a list of all licenses, permits or other authorizations held by the Seller from Federal, state or local authorities (except local business licensees), including the Food and Drug Administration, and to Seller’s Knowledge's knowledge, such licenses, permits or other authorizations are the only ones required by Seller to offer the Products, and to operate Seller's facilities (or any manufacturing contractor's facilities) relating to the Products as currently conducted by Seller (and such contractors).
(k) Seller will pay all of its own expenses whether or not the transactions contemplated hereto are consummated. Seller will pay all income, franchise, payroll, sales and all other taxes arising out of Seller's operations prior to and subsequent to Closing. Each party shall be responsible for any taxes imposed on it as a result of the transactions contemplated herein.
(l) For the calendar years 1997 and 1998 and for the five months ended May 31, 1999, (i) no site or area improvements have been constructed or installed by any public authorityExhibit J hereto sets forth the sales, the cost costs of which may be assessed in whole or in part against any part sales and returns for each of the Real Property; Product sold by Seller, (ii) to Seller’s Knowledge, except Exhibit I hereto sets forth the top twenty customers for any impact or development fees that may be imposed on each period and returns for each period in excess of $1,000 for the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development feesProduct by each such customers; and (iii) Exhibit K sets forth any and all product liability claims for the Product to the Knowledge of Seller. Within 15 days after the Closing Date, Seller has not been notified will deliver to Buyer a complete list of any possible future improvements that might create an assessment against any part all sales of the Real Property.
(i) There is Product beginning after May 31, 1999 to the Closing Date and all such sales will be made in the ordinary course of business, consistent with past practices without any special discounts, promotional activities or sales to diverters. To Seller's Knowledge, no pending, and Seller customer set forth on Exhibit I hereto has no written notice of any threatened taking indicated an intent to stop purchasing the Product or condemnation to materially alter its purchases of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or programProduct.
(m) To Seller's Knowledge, no representation, warranty or agreement made by the Seller has filed all federalin this Agreement or made or to be made in the Exhibits hereto and no statement made or to be made in any such Exhibit, state and local tax returns list, certificate or schedule or other instrument furnished by Seller as required by law with respect to Sellerthis Agreement contains, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n)or will contain when delivered, to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice any untrue statement of any pending or threatened governmental proceedings or other a material fact or condition that would limit such access.
(o) There are no attachmentsomits or will omit to state when delivered any material fact necessary to make any statement, executionsrepresentation, assignments for the benefit of creditors warranty or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), agreement not misleading to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner a prospective purchase of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental lawsProducts. To Seller’s 's Knowledge, all material facts or conditions adversely affecting the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), value of the Products or the business operations of Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, relating directly to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall Assets have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously been disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingBuyer.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Lee Pharmaceuticals)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit of the Purchaser Buyer as follows:
(a) A. The execution, delivery and performance of this Agreement and of all documents to be executed pursuant hereto by Seller is have been duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with authorized by all necessary power action on the Part of Seller, and, upon delivery, this Agreement and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a all such documents shall constitute valid and binding obligation of the obligations to Seller, is legally binding, and is and will be enforceable in accordance with their respective terms;
B. The Property is transferable by Seller by its termssole act and deed, except as enforceability may be limited by applicable bankruptcyand no consent on the part of any other person or entity is necessary to validate the transfer to Buyer;
C. There are no unrecorded licenses, insolvency and leases or other laws and equitable principles affecting creditors’ contractual rights generally and relating to the discretion use or possession of the courts in granting equitable remediesProperty;
(c) The execution and delivery by D. Seller has not received any notice or written communication from any governmental entity indicating that a condition exists with respect to the Property that violates any county, state or federal law, ordinance, regulation or code; nor has Seller of this Agreement and the consummation by the Seller received any written notice or communication from an insurance carrier of the TransactionProperty regarding dangerous, will not constitute (with the giving of notice illegal or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable lawother conditions requiring corrective action;
(d) Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) E. There is no litigation, action, litigation or other proceeding pending or, to the best of Seller’s Knowledge's knowledge, threatened (whether such matters are brought at law, in equity against or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes any of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) F. To the best of Seller’s Knowledge's knowledge, neither Seller nor any prior 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 Real Property has manufactured to any damages, penalties or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of liabilities under any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federalFederal, state or local governmental authority having jurisdiction over environmental law.
G. To the Real Property, to the effect that the Real Property is not in compliance with any best of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge's knowledge, there are no pending suits or legal actions with respect by any governmental authority for the taking of all or any 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 Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding that could result in a lien being imposed upon the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of SellerProperty;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s H. The representations and warranties made herein or contained in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same this paragraph shall be true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices this Agreement and shall cause Seller to promptly pay the same after survive Closing as they are received, to the extent they relate to the time for a period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingone (1) year.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Western Wind Energy Corp)
Representations and Warranties by Seller. Seller hereby represents and warrants shall indemnify Buyer from any expense, cost, damage or loss suffered by Buyer to and for the benefit extent caused by the breach by Seller of any of the Purchaser as follows:
(a) Seller is duly organized, validly existing representations and warranties set forth in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement, but only if Buyer first has Actual Knowledge of such breach after Closing. To the extent Buyer has Actual Knowledge prior to perform Closing of any breach by Seller of any of its obligations hereunderrepresentations and warranties set forth in this Agreement, Buyer's sole right and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and remedy will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under either (i) any agreement, commitment terminate this Agreement by giving Seller written notice thereof at or understanding before the Closing and request the Title Company to which return the Transferred Interest or the Company is subject or by which it is boundXxxxxxx Money to Buyer, or (ii) any applicable law;
(d) Seller waive the breach and proceed to Closing. Where the phrase "to Seller's Knowledge" is used in this Agreement, it shall mean the owner actual knowledge of the Transferred Interest Seller’s current CEO, current CFO, General Counsel, and has Vice President, Real Estate, as of the Closing Effective Date, title without any imputed, implied, or constructive knowledge of said individual and without any duty to such Transferred Interestinvestigate. Notwithstanding anything herein to the contrary, free and clear of any and all encumbrancesin no event shall the current CEO, lienscurrent CFO, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interestsGeneral Counsel, and claimsVice President, except for Real Estate, have any personal liability in any manner whatsoever hereunder or otherwise related to the Permitted Exceptions;
(f) There transactions contemplated hereby. Where the phrase "Actual Knowledge of Buyer" or a similar phrase is no litigationused in this Agreement, actionit shall mean the actual knowledge of Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxxx Xxxx, and Xxxxxxxx X. Xxxxxxx, Xx., without any imputed, implied, or other proceeding pending orconstructive knowledge of said individual and without any duty to investigate.
7.1. Except as herein expressly stated, to Buyer is purchasing the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity Property based upon its own investigation and inquiry and is not relying on any representations or before any administrative agency warranties of Seller or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby any party and agrees to indemnify accept and hold purchase the Purchaser harmless against Property "AS IS", "WHERE IS" and from all claims"WITH ALL FAULTS", demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition conditions of impact or development fees; examination herein set forth and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Propertyexpress representations and warranties herein contained.
(i) There is no pending, 7.2. Seller represents and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, warrants to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited Buyer now and on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.follows:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Christopher & Banks Corp)
Representations and Warranties by Seller. Seller hereby represents represents, warrants and warrants covenants to and for the benefit Purchaser as of the Purchaser as followsdate hereof that:
(ai) Seller is a national banking association, duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formedUnited States of America;
(ii) Seller has the legal right, with all necessary power and authority to execute enter into this Agreement and deliver this Agreement, to perform all of its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation performance by the Seller of the Transactionits obligation hereunder, (x) has been duly authorized, and (y) will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of, any of the acceleration terms, conditions and provisions of its organizational and governance documents or entitle any Party to accelerate (whether after the giving of notice law, statute, rule or lapse of time or both)regulation, or constitute a default under (i) order, judgment, writ, injunction or decree of any agreementcourt or governmental instrumentality, commitment or understanding any contract, agreement or instrument to which the Transferred Interest or the Company it is subject a party or by which it is bound, or to which it or any portion of its property is subject and (iiz) will not require the consent, approval, authority or order of any applicable lawcourt or governmental agency that has not been previously obtained in writing or delivered to Purchaser;
(diii) 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 is or Purchaser to the owner Unit, including its interest in the Common Elements (exclusive of the Transferred Interest and has as of proceedings, if any, set forth on Schedule 11(a)(iii) hereto). Purchaser shall have no liability under, or any obligation to pursue, such litigation or proceedings, except to the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claimsextent required under Section 8A hereof;
(eiv) The Company will beSeller has not received written notice of any pending condemnation, at eminent domain or similar proceedings with respect to the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claimsUnit, except for the Permitted Exceptions;
(fproceedings described on Schedule 11(a)(iv) There is no litigationattached hereto, action, or other proceeding pending or, and to the Seller’s 's Knowledge, no such proceedings are threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transactioncontemplated. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending plan, study or threatened effort by any governmental proceedings authority or other fact agency that in any way adversely affects or condition that would limit such access.
(o) There are no attachmentsadversely affect the present use or zoning of the Unit, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except except as may be set forth in Schedule 6.2(p)11(a)(iv) attached hereto, and to Seller’s Knowledge's Knowledge no such plans, the Real Property contains no threatened study or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Propertyeffort is being contemplated;
(rv) To Seller’s Knowledgeexcept 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 no cemeteriesunrecorded rights of first offer to purchase, grave sites rights of first refusal to purchase, purchase options or burial sites 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 transactions provided for herein;
(vi) the fixtures, furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located on the PropertyUnit (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;
(svii) To 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 's Knowledge, neither Seller nor any prior owner of all monetary obligations with respect to the Real Property has manufactured or disposed installation of any Hazardous Substance on utilities servicing the Real PropertyUnit, or stored or used any such Hazardous Substance on the Real Property in such quantitiesincluding all connection, concentrationshook-up and tap fees, forms, levels, or otherwise in a manner which is in violation of any applicable environmental lawshave been satisfied. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from notice of any federal, state or local governmental authority having jurisdiction over the Real Property, default with respect to the effect that the Real Property is not in compliance with any of its obligations concerning such environmental lawsutilities. Seller has not received notice, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), and to Seller’s Knowledge, 's Knowledge there are no pending actions 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 increase in the assessed valuation of the Unit (as it pertains to real, personal or other taxes payable with respect to the Real Property under 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 environmental lawsproperty manager retained by Seller for the management of the Unit, including, without limitation, books and records, tenant files, budgets and third-party reports. During the Inspection Period, Seller acknowledges and agrees that Purchaser shall have the right to enter the Real Property cause Seller to terminate, effective as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real PropertyClosing 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. If To Seller's Knowledge, there exists no uncured material default under any contamination or violations Lease on the part of environmental law any tenant except for past due rents specified on Schedule 11(a)(xi). All security or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned deposits paid prior to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence date hereof with respect to environmental investigations that Purchaser deems appropriate the Leases are accurately specified on Schedule 11(a)(xi). Except as disclosed on Schedule 11(a)(xi), Seller has not received any written notice in which any tenant has asserted any defense, setoff or any other investigations. Nothing herein is intended counterclaim with respect to diminish any of Seller’s its tenancy or its obligations under applicable law or to impose on Purchaser any of such liabilities of Sellerits Lease;
(txii) To Seller’s Knowledgethere 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 information and materials furnished and Contracts or the Condominium Declaration and, to be furnished to Purchaser 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), and Seller’s representations and warranties made herein no rent has been, or in connection herewithat the time of Closing will have been, are true, complete and accurate and do not omit 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 include any material information necessary to make the same true or not misleading; Unit;
(uxvi) Seller is not a “"foreign person” as that term is defined in " within the meaning of Section 1445(f)(3) of the Internal Revenue Code Section 1445(f)(3)of 1986;
(xvii) this Agreement constitutes, nor is 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 sale 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 Real Property subject Unit fail to comply, in any withholding material respect, with any applicable legal requirements imposed by with regard to the Internal Revenue Code, use and occupancy thereof (including, without limitation, Section 1445 thereof; andzoning and building laws and ordinances, at Closingenvironmental protection laws and other similar rules, Seller shall execute regulations and deliver orders of any governmental entity or agency having jurisdiction over the Unit) or with any requirements with respect to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable any building, occupancy or other permit, license or approval of any such governmental entity or agency with respect to Purchaser stating such;
(v) Except the Unit except as set forth in Schedule 6.2(v11(a)(xviii)(1). Schedule 11(a)(xviii)(2) contains a complete list of all zoning, to Seller’s Knowledge: (i) No oral use or written contract similar agreements between Seller and any governmental or agreement exists quasi-governmental entities or agencies that contains an unperformed obligation affect the Unit or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, Common Elements or any adjoining or surrounding property owner, which would in any way be binding on Purchaserportion of either of them;
(wxix) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute to Seller's Knowledge, all the contracts for the purchase of any portion of the Real Propertylicenses, permits and as of the date hereofapprovals, Seller is not aware of any defaultif any, or an event, except for the passage of time or giving of notice, or both, would constitute a default, necessary in connection with the existing Purchase Contractsuse or occupancy of the Unit have been, and at the time of Closing will have been, obtained and are, and will then be, in full force and effect;
(xxx) Seller is not, and will not be, a no unused transferable development rights appurtenant to the Unit have been assigned or transferred to any other person or entity by Seller;
(xxi) to Seller's Knowledge, Seller is in compliance with whom Purchaser is restricted from doing business with all of the rules, regulations and requirements promulgated by the NYCDF under the Uniting ICIP relating to ICIP Application Numbers 4066 and Strengthening America by Providing Appropriate Tools Required 6052, which are the only ICIP Application Numbers pertaining to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on ICIP tax exemption applicable to the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons ListUnit; and
(yxxii) As of Seller does not have any ownership interest in any building systems or equipment located in the Closing, the Company (i) shall Common Elements other than such interests as may have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, been created pursuant to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingMaster License Agreement.
Appears in 1 contract
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser as of the Purchaser date of this Agreement as follows:
(a) Seller is an Illinois limited partnership, duly organizedformed, validly existing and in good standing under the laws Laws of the jurisdiction in which it is was formed, with all necessary power and has the full 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, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Agreement and the 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 constitutes when executed and delivered by the Seller a legal, valid and binding obligation of the Purchaser, this Agreement constitutes a legal, valid and binding obligation of Seller, is legally binding, and is and will be enforceable against Seller in accordance with its terms, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws and equitable principles affecting the enforcement of creditors’ ' rights generally and the discretion by general principles of the courts in granting equitable remedies;equity.
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, transactions contemplated hereby by Seller do not and will not constitute (i) violate or conflict with the giving of notice Seller's organizational documents or the lapse of time (ii) violate or bothconflict with any Laws or any governmental regulation or permit applicable to Seller or (iii) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both)a breach of, or constitute a default under (i) under, any agreement, commitment provision of any contract or understanding other instrument to which the Transferred Interest or the Company Seller is subject a party or by which it is bound, which breach or default would prevent or materially interfere with Seller's performance hereunder or (iiiv) result in the creation or imposition of any applicable law;lien, charge or encumbrance pursuant to the terms of any such contract or other instrument which lien, charge or encumbrance would prevent or materially interfere with Seller's performance hereunder.
(d) Except as specified 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, Seller is has not received written notice of any actions, suits or proceedings, either pending or threatened, against Seller in connection with the owner Loan, including, without limitation, any actions, suits or proceedings which might question the validity of this Agreement or the consummation of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;transactions contemplated hereby.
(e) The Company will be, at As of the time of Closingdate specified on Exhibit A (the "Pricing Date"), the fee owner (i) unpaid principal balance of the Real PropertyLoan, free and clear (ii) the amount of all encumbrancesinterest accrued on the Loan which remains unpaid, liens, mortgages, security interests(iii) the rate or rates at which interest on the unpaid principal amount of the Loan accrues or is payable, and claims, except for (iv) the Permitted Exceptions;maturity date with respect to the Loan are as specified on Exhibit A hereto.
(f) There is no litigationTo the best of Seller's knowledge, action(i) the Loan Documents specified on Schedule 7(f) hereto constitute all material Loan Documents, (ii) such Loan Documents have not been modified or other proceeding pending oramended, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed described on Schedule 7(f) hereto, and (iii) the copies of such Loan Documents which are attached to Purchaser);Schedule 7(f) or which have previously been delivered to Purchaser are true and correct in all material respects.
(g) No brokerExcept as specified on Schedule 7(g) or 7(h) or as previously disclosed to Purchaser in writing, agentto the best of Seller's knowledge, consultant without investigation or 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 person has assisted laws affecting the Seller enforcement of creditors' rights generally and by general principles of equity, regardless of whether such realization is considered in procuring, negotiating a proceeding at law or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; equity.
(h) Seller represents, except Except as set forth on Schedule 6.2(h)7(h) or as previously disclosed to Purchaser in writing, to the best of Seller’s Knowledge's knowledge, without investigation or inquiry with respect thereto, (i) no site Seller has not commenced or area improvements have been constructed threatened to commence any actions, suits or installed by any public authorityproceedings in connection with the Loan Documents, the cost of which may be assessed in whole or in part against any part of the Real Property; and (ii) to Seller’s Knowledgethere are no valid, except for effective and enforceable orders, injunctions or decrees of any impact federal, state, municipal or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject local court or arbitral body with respect to the imposition of impact Loan or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real PropertyLoan Documents.
(i) There Seller (i) is no pendingthe sole owner and holder of the Loan, and Seller has no written notice free of any threatened taking encumbrances, liens, pledges, charges or condemnation 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 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 Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;Loan provided for herein.
(j) Except as set forth specified on Schedule 7(j) hereto or as previously disclosed to Purchaser in Schedule 6.2(j), Seller has received no written notice, norwriting, to the best of Seller’s Knowledge's knowledge, without investigation or inquiry with respect thereto, neither Borrower nor any Guarantor has filed or is Seller in material violation the subject of any law, order, ruling, ordinance, rule proceeding under any state or regulation with respect to Seller federal bankruptcy or the Real Property or the use thereof;insolvency Law.
(k) To Except as specified on Schedule 7(k) hereto or as previously disclosed to Purchaser, to the best of Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including's knowledge, without limitationinvestigation or inquiry with respect thereto, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property Seller has not contained a bury received any written notice of any pending or borrow pit; and (v) no wetlands threatened condemnation or other protected areas on similar proceeding affecting the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableProperty.
(l) Except as set forth specified on Schedule 7(l) hereto or as previously disclosed to Purchaser in Schedule 6.2(l)writing, to Seller’s Knowledge the Real Property has not been, and is not being, assessed no environmental reports or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions studies with respect to the Real Property under any environmental laws. During the Inspection Period(collectively, Purchaser shall "Reports") have the right to enter the Real Property as provided under other provisions been performed by or on behalf of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are foundSeller and, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any best of Seller’s obligations under applicable law 's knowledge, without investigation or to impose on Purchaser inquiry, Seller has not received notice that any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or Reports are inaccurate in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same respect. All warranties and representations of Seller in this Section 7 are true or not misleading; (u) Seller is not a “foreign person” as that term is defined and correct in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and material respects as of the date hereof, Seller is not aware of any defaultand, or an eventwith respect to clauses (a) through (c) above, except for the passage of time or giving of notice, or both, would constitute a default, shall continue to be true and correct in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known all material respects as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the ClosingClosing Date. Subject to the provisions of Section 17 hereof, the Company representations and warranties of Seller contained in this Section 7 shall survive the Closing for a period of ninety (i90) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(ydays; provided, however, that any claim hereunder based upon such representations and warranties must be made within such ninety (90) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingday period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Balcor Pension Investors Iii)
Representations and Warranties by Seller. Seller hereby represents represents, warrants and warrants covenants to and for the benefit Purchaser as of the Purchaser as followsdate hereof that:
(ai) Seller is a corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formedState of Delaware;
(ii) Seller has the legal right, with all necessary power and authority to execute enter into this Agreement and deliver this Agreement, to perform all of its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation performance by the Seller of the Transactionits obligation hereunder, (x) has been duly authorized, and (y) will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of, any of the acceleration terms, conditions and provisions of its organizational and governance documents or entitle any Party to accelerate (whether after the giving of notice law, statute, rule or lapse of time or both)regulation, or constitute a default under (i) order, judgment, writ, injunction or decree of any agreementcourt or governmental instrumentality, commitment or understanding any contract, agreement or instrument to which the Transferred Interest or the Company it is subject a party or by which it is bound, or to which it or any portion of its property is subject, and (iiz) will not require the consent, approval, authority or order of any applicable lawcourt or governmental agency that has not been previously obtained in writing or delivered to Purchaser;
(diii) 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 is or Purchaser to the owner Unit, including its interest in the Common Elements (exclusive of the Transferred Interest and has as of proceedings, if any, set forth on SCHEDULE 11(a)(iii)). Purchaser shall have no liability under, or any obligation to pursue, such litigation or proceedings, except to the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claimsextent required under SECTION 8A;
(eiv) The Company will beSeller has not received written notice of any pending condemnation, at eminent domain or similar proceedings with respect to the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claimsUnit, except for the Permitted Exceptions;
(f) There is no litigationproceedings described on SCHEDULE 11(a)(iv), action, or other proceeding pending or, and to the Seller’s 's Knowledge, no such proceedings are threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transactioncontemplated. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending plan, study or threatened effort by any governmental proceedings authority or other fact agency that in any way adversely affects or condition that would limit adversely affect the present use or zoning of the Unit, except as may be set forth in SCHEDULE 11(a)(iv), and to Seller's Knowledge no such access.
(o) There are no attachmentsplans, executions, assignments for the benefit of creditors study or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Propertyeffort is being contemplated;
(pv) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There there are no unrecorded leases effecting rights of first offer to purchase, rights of first refusal to purchase, purchase options or promised in connection with similar purchase rights or contractually required consents to transfer pertaining to the Real PropertyUnit which would be breached by this Agreement or the consummation of the transactions provided for herein;
(rvi) To Seller’s Knowledgethe fixtures, furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located in the Unit (other than personal property owned or leased by tenants or the property manager of the Unit) have been fully paid for and are owned by Seller free and clear of all liens and encumbrances;
(vii) there are no cemeteries, grave sites or burial sites located on direct employees of Seller working at the PropertyUnit (including security personnel) whose employment will be required to be transferred to Purchaser as a result of the transactions contemplated by this Agreement;
(sviii) To to Seller’s 's Knowledge, neither Seller nor any prior owner of all monetary obligations with respect to the Real Property has manufactured or disposed installation of any Hazardous Substance on utilities servicing the Real PropertyUnit, or stored or used any such Hazardous Substance on the Real Property in such quantitiesincluding all connection, concentrationshook-up and tap fees, forms, levels, or otherwise in a manner which is in violation of any applicable environmental lawshave been satisfied. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from notice of any federaldefault with respect to any of its obligations concerning such utilities. Seller has not received notice, state or local governmental authority having jurisdiction over the Real Propertyand to Seller's Knowledge there are no threats, of any curtailment of utility services to the effect that Unit or any part thereof;
(ix) a true and complete list of the Real Property is not in compliance Protest Proceedings, if any, and the law firms or consultants representing Seller with any respect thereto, and descriptions of the fee arrangements with such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as law firms and consultants are set forth in Schedule 6.2(sSCHEDULE 11(a)(ix). Seller has not received any notice of any increase in the assessed valuation of the Unit (as it pertains to real, to Seller’s Knowledge, there are no pending actions personal or other taxes payable with respect to the Real Property under Unit) or the real estate or personal property taxes payable in respect thereof. There are no special assessments outstanding with regard to the Unit;
(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 environmental lawsproperty manager retained by Seller for the management of the Unit, including books and records, tenant files, budgets and third-party reports. During Prior to the Inspection PeriodClosing Date, Seller shall use reasonable efforts to deliver, or to make available to Purchaser, copies of documents in its files or in the files of any property manager retained by Seller for the management of the Unit, reports, information and correspondence related to the operation of the Condominium. Seller acknowledges and agrees that Purchaser shall have the right to enter the Real Property cause Seller to terminate, effective as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real PropertyClosing Date, any Contracts designated by Purchaser in a written notice given to Seller not less than forty (40) days prior to the Closing PROVIDED THAT such Contracts may, by their terms, be terminated on thirty (30) days' notice or less. If Purchaser acknowledges that certain of the Contracts described in SCHEDULE 11(a)(x)(2) are not by their terms assignable, or will automatically terminate upon the effectuation of the transactions described herein and in the Unit Two Contract Assignment and Assumption Agreement;
(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 material default under any contamination or violations Lease on the part of environmental law any tenant except for past due rents specified on SCHEDULE 11(a)(xi). All security or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned deposits paid prior to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence date hereof with respect to environmental investigations that Purchaser deems appropriate the Leases are accurately specified on SCHEDULE 11(a)(xi). Except as disclosed on SCHEDULE 11(a)(xi), Seller has not received any written notice in which any tenant has asserted any defense, setoff or any other investigations. Nothing herein is intended counterclaim with respect to diminish any of Seller’s its tenancy or its obligations under applicable law or to impose on Purchaser any of such liabilities of Sellerits Lease;
(txii) To 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). 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 except as disclosed in SCHEDULE 11(a)(xi) or SCHEDULE 11(a)(iii), and, to Seller’s 's Knowledge, Seller is not in default under any of the information and materials furnished and to be furnished to Purchaser 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), and Seller’s representations and warranties made herein no rent has been, or in connection herewithat the time of Closing will have been, are true, complete and accurate and do not omit 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 include any material information necessary to make the same true or not misleading; Unit;
(uxvi) Seller is not a “"foreign person” as that term is defined in " within the meaning of Section 1445(f)(3) of the Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such1986;
(vxvii) Except 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) to Seller's Knowledge, Seller has not received any written 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 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 6.2(vSCHEDULE 11(a)(xviii)(1). To Seller's Knowledge, to Seller’s Knowledge: (iSCHEDULE 11(a)(xviii)(2) No oral contains a complete list of all zoning, use or written contract similar agreements between Seller and any governmental or agreement exists quasi-governmental entities or agencies that contains an unperformed obligation affect the Unit or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, Common Elements or any adjoining or surrounding property owner, which would in any way be binding on Purchaserportion of either of them;
(wxix) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute to Seller's Knowledge, all the contracts for the purchase of any portion of the Real Propertylicenses, permits and as of the date hereofapprovals, Seller is not aware of any defaultif any, or an event, except for the passage of time or giving of notice, or both, would constitute a default, necessary in connection with the existing Purchase Contractsuse or occupancy of the Unit (other than licenses, permits and approvals for which tenants or the Board of Managers are responsible) have been, and at the time of Closing will have been, obtained and are, and will then be, in full force and effect;
(xxx) Seller is not, and will not be, a person no unused transferable development rights appurtenant to the Unit have been assigned or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America transferred to any other Person by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons ListSeller; and
(yxxi) As of Seller does not have any ownership interest in any building systems or equipment located in the Closing, the Company (i) shall Common Elements other than such interests as may have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, been created pursuant to the extent they relate to Master License Agreement or the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingSystems Agreement.
Appears in 1 contract
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit of the Purchaser as followsthat:
(a) Seller Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of Nevada. Company is duly qualified to do business and in which it is formed, with good standing as a foreign corporation in all necessary jurisdictions where the nature of its business or the ownership of its properties requires such qualification. Company has all requisite corporate power and authority to execute own, lease and deliver operate its properties, to carry on its businesses as they are now being conducted and to enter into and perform this Agreement, to perform its obligations hereunder, . Company is in material compliance with applicable securities laws and to consummate the Transactionregulations of the SEC;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation The authorized capital stock of the SellerCompany consists of 70,000,000 shares of common stock, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies$0.001 par value (“Common Stock”);
(c) The execution issued and delivery by the Seller outstanding capital stock of this Agreement Company consists and the consummation by the Seller as of the TransactionClosing will consist of eleven million (11,000,000) shares of Common Stock, will not constitute (all of which are duly authorized and validly issued, fully paid and nonassessable, and issued in compliance with the giving of notice or the lapse of time or both) a violation ofall applicable federal, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable lawstate and foreign securities laws;
(d) Seller Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any Persons, that affects or relates to the owner voting or giving of written consents with respect to any securities of the Transferred Interest Company or the voting by any director of the Company;
(e) The Shares are, and has as of the Closing DateDate will be, duly authorized and validly issued, fully paid and nonassessable, and issued in compliance with all applicable federal, state and foreign securities and other applicable laws. Upon the Closing, Purchaser will own approximately 59.54% of the issued and outstanding capital stock of the Company;
(f) Seller owns the Shares free and clear of any lien, encumbrance, adverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase and upon the consummation of the sale of the Shares as contemplated in this Agreement, Purchaser will have good title to such Transferred Interestthe Shares, free and clear of any and all encumbranceslien, liensencumbrance, claimsadverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase;
(eg) The Company Seller has the full legal right, power and authority to enter into and to perform this Agreement, to consummate the transactions contemplated hereby, and to sell and transfer the Shares without the consent or approval of any other Person, and has taken, or will be, at take prior to the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except actions necessary for the Permitted Exceptionsauthorization, execution, delivery and performance of this Agreement;
(fh) This Agreement constitutes Seller’s valid and binding obligation, enforceable against Seller in accordance with its terms;
(i) There are no claims, actions, suits, arbitrations, criminal or civil investigations or proceedings pending or involving or, to the knowledge of Seller, threatened against Company before or by any court or governmental or nongovernmental department, commission, board, bureau, agency or instrumentality, or any other person or entity and to the knowledge of Seller, there is no litigationvalid basis for any claim, action, suit, arbitration, investigation or other proceeding that could reasonably be expected to be materially adverse to the business, assets, operations, prospects or condition (financial or other) of Company before or by any person or entity;
(j) There are no outstanding, threatened, or unsatisfied judgments, orders, decrees or stipulations to which Company is a party that involve the transactions contemplated herein or that would have a material adverse effect on the business, assets, operations, prospects or condition (financial or other) of Company;
(k) There are no labor disputes, employee grievances or disciplinary actions pending or, to the knowledge of Seller’s Knowledge, threatened (whether such matters are brought at law, in equity against or before involving Company or any administrative agency present or other Governmental Authority or instrumentality) former employee of the Company and Company has complied with all provisions of law relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No brokeremployment and employment practices, agentterms and conditions of employment, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify wages and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (hours including, without limitation, organic materialsequal opportunity, strippingsworkplace safety, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; workers’ compensation and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.similar laws;
(l) Except Seller has no reason to believe that the Company’s balance sheet, as set forth in Schedule 6.2(l)appended hereto as Exhibit A, to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.inaccurate; and
(m) No information furnished by Company or Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised Purchaser in connection with the Real Property;
this Agreement (rincluding, but not limited to, financial statements and information) To Seller’s Knowledge, there are no cemeteries, grave sites is false or burial sites located on the Property;
(s) To Seller’s Knowledge, misleading in any material respect and neither Seller Company nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from made any federal, untrue statement of a material fact or omitted to state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not a material fact necessary in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary order to make the same true statements made or information delivered in or pursuant to this Agreement not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Representations and Warranties by Seller. (a) The Seller hereby represents and warrants to EDC on the date hereof and for the benefit is deemed to represent and warrant on and as of the Purchaser as followsPurchase Date, that:
(ai) the Seller is a corporation duly organized, incorporated and organized and validly existing and in good standing under the laws of the jurisdiction in which it is formed, with Canada and has all necessary corporate power and authority to execute and deliver this Agreement, Agreement and to perform its obligations hereunder, hereunder and to consummate the Transactionlocations of its chief executive office and its places of business are as set forth on Schedule “E” hereto;
(bii) This Agreement constitutes when executed except as to any proceedings and delivered by “prior disclosures” made under .19 U.S.C. §1592, disclosed on Schedule “C” hereto, complete and accurate copies of which have been provided to EDC and none of which involved any fraud on the Seller a valid and binding obligation part of the Seller, is legally bindingthere are no actions, and is and will be enforceable in accordance with its termspetitions, except as enforceability may be limited by applicable bankruptcysuits or proceedings pending, insolvency and other laws and equitable principles affecting creditors’ rights generally and or, to the discretion best of the courts knowledge of the Seller, threatened against the Seller before any court, tribunal or administrative or governmental agency which, if adversely determined, would reasonably be expected to (i) adversely affect the Seller’s ability to perform its obligations under this Agreement or (ii) adversely affect EDC’s ability to acquire or receive payment in granting equitable remediesfull of the Purchased Refund; and there are no judgments, decrees or orders of any court, tribunal or administrative or governmental agency against or relating to the Seller or any of its property or assets which, if adversely determined, would reasonably be expected to (i) adversely affect the Seller’s ability to perform its obligations under this Agreement; or (ii) adversely affect EDC’s ability to acquire or receive payment in full of the Purchased Refund;
(ciii) The except as to any proceedings and “prior disclosures” referenced in clause (ii)above, there are no disputes between the Seller and the US Government, and to the best of its knowledge, there are no other circumstances which would reasonably be expected to adversely affect (i) the Seller’s right to the Purchased Refund, or (ii) EDC’s ability to acquire or receive payment in full of the Purchased Refund;
(iv) subject to the sale, assignment and transfer contemplated by this Agreement, the Seller owns and has good and valid right and title to the Purchased Refund. Ownership of and good and valid right and title to the Purchased Refund shall vest in EDC pursuant to this Agreement after the delivery of the Seller Amount to Seller, free and clear of any lien, charge, security interest, or encumbrance of any nature whatsoever or of any other right, claim or interest of any third party and free and clear of all defenses, abatements, set-offs, counterclaims and deductions of any nature, except to the extent expressly permitted by EDC or otherwise contemplated hereby;
(v) the Seller has not previously sold, assigned or transferred any or all of its rights to collect duties on softwood lumber imports including any of its rights in respect of the Purchased Refund; and its rights to the Purchased Refund are, as of the Purchase Date, free and clear of any lien, charge, security interest, or encumbrance of any nature whatsoever or of any other right, claim or interest of any third party;
(vi) no Event of Default of the nature described in Section 7.01(a) or (b) and to the best of the Seller’s knowledge, after due inquiry, no Event of Default of the nature described in Section 7.01(c) has occurred and is continuing;
(vii) the Seller is in compliance with all laws applicable to it relating to anticorruption and bribery;
(viii) except as contemplated under the Softwood Lumber Agreement and this Agreement, and except for the filing of an ACH Agreement, to the best of the knowledge of the Seller, no consent, approval or authorization of, or declaration, registration, filing or qualification with, or giving of notice to, or taking of any other action in respect of, any governmental authority or agency on the part of the Seller is required in connection with the execution, delivery or enforcement of this Agreement or the Purchase Notice issued pursuant to this Agreement or the performance hereof or the consummation of any of the transactions contemplated thereof;
(ix) the execution and delivery by the Seller of this Agreement and the consummation performance of, and the compliance with the terms hereof by the Seller (i) do not contravene or conflict with its constating documents, by-laws or its resolutions; (ii) are not in violation of any law, statute, rule, regulation or ordinance of Canada or any political subdivision thereof; (iii) do not, as of the TransactionPurchase Date, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in the acceleration any breach of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under any document, instrument or agreement to which it is a party to or by which it is bound or its properties or assets are bound; and (iiv) will not result in or require the creation or imposition of any agreementlien, commitment charge, security interest, encumbrance or understanding other right, claim or interest of any person other than EDC upon the Purchased Refund whether created or imposed at law or pursuant to the terms of any document, agreement or instrument to which the Transferred Interest or the Company Seller is subject or by which it is or any of its properties or assets are bound, or (ii) any applicable law;; and
(dx) the Seller has taken all necessary action (corporate or otherwise) to authorize the execution, delivery and performance of this Agreement, and this Agreement has been duly authorized, executed and delivered by the Seller.
(b) EDC represents and warrants to the Seller on the date hereof and is the owner of the Transferred Interest deemed to represent and has warrant on and as of the Closing Purchase Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.that:
(i) There EDC is no pending, a corporation duly established and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The validly existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act laws of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons ListCanada; and
(yii) As of the ClosingEDC has full power and authority to execute, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached heretodeliver, and perform the terms and provisions of this Agreement, has taken all necessary action (iicorporate or otherwise) shall have reserved sufficient sums to pay all accrued invoices authorize the execution, delivery and shall cause Seller to promptly pay the same after Closing as they are receivedperformance thereof, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilitiesand this Agreement has been duly authorized, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingexecuted and delivered by EDC.
Appears in 1 contract
Samples: Softwood Lumber Agreement Cash Deposits Purchase and Sale Agreement (Bowater Inc)
Representations and Warranties by Seller. 5.1 Seller hereby represents makes the representations and warrants to warranties in this Paragraph 5, each and for all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the benefit of the Purchaser as followsClosing:
(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in State of Kansas which it is formed, with all necessary 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, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Neither the entering into this Agreement constitutes when executed and delivered by 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 valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;party.
(c) The execution Wichita Facility is zoned to permit the operation of a restaurant thereon, and delivery by all improvements on the Seller of this Agreement Wichita Facility conform to all existing building, zoning, environmental or other laws and the consummation by the Seller of the Transactionordinances, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be and is in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner of the Transferred Interest good operating condition and has repair as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of received any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material presently uncured violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materialsthose relating to zoning, strippingsbuilding, rocksfire, stumps or concretehealth and safety) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas of any governmental, quasi-governmental authority bearing on the Real Property have been filled construction, operation, ownership or altered without a permit from use of the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableWichita Facility.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(md) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has not received no written any notice of any pending widening, modification or threatened governmental proceedings realignment of any street or other fact highway contiguous to either property or condition that any existing or proposed eminent domain proceeding which would limit such accessresult in a taking of all or any part of the Wichita Facility.
(oe) There are no attachmentsNone of the easements, executionscovenants, assignments for conditions, restrictions or agreements to which the benefit Wichita Facility is subject interferes with or is breached by the use or operation of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;Wichita Facility as presently used and operated as a restaurant.
(pf) Except as set forth in Schedule 6.2(p)Seller has not been served with any litigation, to Seller’s Knowledgeand no arbitration proceedings have been commenced, the Real Property contains no threatened which do or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor will affect any prior owner aspect of the Real Property has manufactured Wichita Facility or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement 's ability to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or its obligations under this Agreement. In addition, Seller is under no obligation has not been threatened in writing with any litigation (or arbitration) by a third party which would affect any aspect of the Wichita Facility or Seller's ability to Purchaser perform its obligations under this Agreement Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to clean up all the Wichita Facility, and all such facilities serving the Wichita Facility have been paid for such that Buyer will not be subject to charges or perform assessments for capital or hookup costs relating to such facilities.
(h) There are not any remediation of the Real Property if any contamination written commitments to, or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to written agreements with, any governmental authorities or agencies regarding quasi-governmental authority or agency materially affecting the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required Wichita Facility which have not been heretofore disclosed by law. Nothing Seller to Buyer in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;writing.
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral All expenses in connection with the construction of all the improvements on the Wichita Land have been fully paid, such that there is no possibility of any mechanics' or written contract materialmens' liens being asserted or agreement exists that contains an unperformed obligation or contingent liability relating filed in the future against the Wichita Facility in respect of any initial construction activities undertaken prior to the Real Property, including, without limitation, contributions of money or land, and Closing.
(iij) Seller has not made been served or notified by any commitment governmental or representation to any government authorityquasi-governmental authority that (i) the Wichita Facility, or any adjoining property, contains or surrounding property ownermay 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, which would used or maintained on, in or under the Wichita Facility in violation of any way be binding 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 Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute or under all the contracts for the purchase of or any portion of the Real Property, and as of Wichita Facility or the date hereof, Seller is not aware of any default, or an event, except for area surrounding the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;Wichita Facility.
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(yk) As of the Closingused in this Agreement, the Company (i) terms "Environmental Regulations" and "Hazardous Materials" shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.following meanings:
Appears in 1 contract
Samples: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Buyer that as of the Purchaser as followsEffective 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 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 jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this AgreementReal Property and, to perform its obligations hereunderthe knowledge of Seller, no party other than Seller has taken such actions on the Real Property, (b) Seller has not at any time released or disposed of Hazardous Materials on the Real Property or any property adjoining or adjacent to the Real Property, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation knowledge of the Seller, is legally bindingno party other than Seller has taken any such actions on the Real Property, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by Seller has not transported or arranged for the Seller transportation of this Agreement and any Hazardous Materials to any site other than the consummation by the Seller of the TransactionReal Property, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is in compliance with all Environmental Laws and the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear requirements of any and all encumbrancespermits issued under such Environmental Laws with respect to the Real Property, liensexcept where failure to comply would not have a material adverse effect on Seller's Real Property, claims;
(e) The Company there are no past, pending or, to the knowledge of Seller, threatened environmental claims against Seller or the Real Property, (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 or (B) to cause the Real Property to be subject to any restrictions on its ownership, occupancy, use or transferability under any Environmental Law, and (g) there are not now, and to the knowledge of Seller, never have been any underground storage tanks located on the Real Property.
iii. To the best of Seller's knowledge, Seller has complied in all material respects with all applicable laws, ordinances, regulations and statutes relating to the Real Property or any part 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 bebe duly executed and delivered by Seller, and are or at the time of Closing, the fee owner will be legal, valid, binding obligations of the Real Property, free and clear of all encumbrances, liens, mortgages, security interestsSeller, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, do not and at Closing will not violate any provisions of any agreement or other proceeding pending or, any applicable governmental law or regulation to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted which the Seller in procuring, negotiating is a party or closing this Transaction. to which Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Propertysubject.
(i) v. There is are no pending, and Seller has no written notice of any threatened taking restrictions or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or applicable regulations which prevent the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) for automobile dealership and servicing purposes.
vi. The restrictive covenants encumbering the Real Property has (if any) have not contained a bury or borrow pit; been violated and (v) there are no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableassessments owed pursuant to such restrictions.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledgevii. Other than ad valorem real property taxes, there are no cemeteries, grave sites other taxes or burial sites located on the Property;
(s) To Seller’s Knowledge, neither assessments pending or periodically charged to Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.
Appears in 1 contract
Samples: Contract to Purchase and Sell Real Property (Sonic Automotive Inc)
Representations and Warranties by Seller. Seller hereby represents and ---------------------------------------- warrants to and for the benefit Corporation as of the Purchaser date hereof and as of the Closing Date as follows:
(a) Seller is duly organized, validly existing has full legal capacity and in good standing under the laws of the jurisdiction in which it is formed, with all necessary unrestricted power and authority to execute and deliver this Agreement and any other document, agreement, instrument or paper to be delivered by Seller pursuant to or in connection with this Agreement, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Agreement constitutes when has been duly executed and delivered by Seller, and constitutes the Seller a legal, valid and binding obligation of the Seller, is legally binding, and is and will be enforceable against Seller in accordance with its terms, except as enforceability the same may be limited affected by applicable bankruptcy, insolvency insolvency, moratorium and other similar laws and equitable principles affecting creditors’ the rights generally and the discretion of the courts in granting equitable remedies;creditors generally.
(c) The execution execution, delivery and delivery by the Seller performance of this Agreement do not and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) result in a violation of any agreement, commitment or understanding law applicable to which the Transferred Interest or the Company is subject or by which it is boundSeller, or (ii) result in a material breach of, conflict with or default under, any applicable law;term or provision of any indenture, note, mortgage, bond, security agreement, loan agreement, guaranty, pledge, or other instrument, contract, agreement or commitment, to which Seller is a party or by which he or any of his assets and properties, including, without limitation, the Redeemed Shares, is subject or bound; nor will such actions result in the creation of any lien, claim, charge or encumbrance on any of the Redeemed Shares.
(d) Seller is the legal and beneficial and of record owner of the Transferred Interest and has as of the Closing Date, title to such Transferred InterestRedeemed Shares, free and clear of any and all encumbrances, liens, claims;
(e) , charges or other encumbrances of any kind or nature whatsoever, other than for those arising under the Shareholders Agreement. The Company delivery by Seller of certificates evidencing the Redeemed Shares, duly endorsed for transfer or accompanied by stock transfer powers duly endorsed in blank, to the Corporation as described above, against payment therefor, will be, at transfer valid title to said Redeemed Shares to the time of Closing, the fee owner of the Real PropertyCorporation, free and clear of any and all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, charges or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified encumbrances of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking kind or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closingnature whatsoever. There are no undisclosed liabilitieswarrants, obligationscalls, claims commitments or other adverse financial conditions rights of others, however evidenced or created with respect to any of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingRedeemed Shares.
Appears in 1 contract
Representations and Warranties by Seller. Seller hereby represents and warrants to and for the benefit Purchaser as of the Purchaser as followsdate hereof that:
(a) Seller is a national banking association, duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is formedUnited States of America;
(b) Seller has the legal right, with all necessary power and authority to execute enter into this Agreement and deliver this Agreement, to perform all of its obligations hereunder, and to consummate the Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation performance by the Seller of the Transactionits obligation hereunder, (x) has been duly authorized, and (y) will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, or result in a breach of, any of the acceleration terms, conditions and provisions of its organizational and governance documents or entitle any Party to accelerate (whether after the giving of notice law, statute, rule or lapse of time or both)regulation, or constitute a default under (i) order, judgment, writ, injunction or decree of any agreementcourt or governmental instrumentality, commitment or understanding any contract, agreement or instrument to which the Transferred Interest or the Company it is subject a party or by which it is bound, or to which it or any portion of its property is subject and (iiz) 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 applicable lawcourt or governmental agency that has not been previously obtained in writing or delivered to the Purchaser;
(c) there are no litigations, governmental or administrative proceedings or arbitrations presently pending or, to Seller's actual knowledge, threatened in writing with respect to any of the 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 is has not received written notice of any pending condemnation, eminent domain or similar proceedings with respect to the owner of the Transferred Interest Property, and has as of the Closing Date, title to no actual knowledge that any such Transferred Interest, free and clear of any and all encumbrances, liens, claimsproceedings are threatened or contemplated;
(e) The Company will bethe fixtures, at furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located on the time of ClosingProperty and being transferred to Purchaser pursuant to this Agreement (i.e., other than the fee owner of the Real Excluded Property, which is not being transferred) have been fully paid for and are owned by Seller free and clear of all liens and encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There a true and complete list of the Protest Proceedings, if any, and the law firms or consultants representing the Seller with respect thereto, is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except attached hereto as disclosed to PurchaserSCHEDULE 10.1(f);
(g) No broker, agent, consultant or other similar person has assisted there are no Leases in effect as of the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, date hereof except as set forth on Schedule 6.2(hSCHEDULE 10.1(g), to Seller’s Knowledge, ;
(i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iiih) Seller has not been notified granted any person the option or right (including any right of any possible future improvements that might create an assessment against any part of refusal) to purchase the Real Property.; and
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “"foreign person” as that term is defined in Internal Revenue Code " within the meaning of Section 1445(f)(3), nor is the sale ) of the Real Property subject Code. Any and all uses of the phrase, "to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), best of the Seller's knowledge" or other references to Seller’s Knowledge: 's knowledge in this Agreement shall mean the actual, present, conscious knowledge of Xxxxx XxxXxxxxx (ithe "Seller Knowledge Individual") No oral as to a fact at the time given without investigation or written contract or agreement exists inquiry. Without limiting the foregoing, Purchaser acknowledges that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller Knowledge Individual has not made performed and is not obligated to perform any commitment investigation or representation to review of any government authorityfiles or other information in the possession of Seller, or to make any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase inquiry of any portion of the Real Property, and as of the date hereof, Seller is not aware of any defaultpersons, or an event, except for the passage of time or giving of notice, or both, would constitute a default, to take any other actions in connection with the existing Purchase Contracts;
(x) representations and warranties of Seller is notset forth in this Agreement. Neither the actual, and will not bepresent, a person conscious knowledge of any other individual or entity with whom Purchaser is restricted from doing business with under entity, nor the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As constructive knowledge of the ClosingSeller Knowledge Individual or of any other individual or entity, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, be imputed to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingSeller Knowledge Individual.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Reckson Associates Realty Corp)
Representations and Warranties by Seller. Seller hereby represents makes the following representations and warrants warranties to and for the benefit of the Purchaser as followsBuyer:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware, is qualified to do business in which it is formed, with all necessary the States of California and Utah and has the legal power and authority to execute own its properties, to carry on its business as now being conducted and deliver to enter into this Agreement and, subject to the receipt of the regulatory approvals, carry out the transactions contemplated hereby and perform and carry out all covenants and obligations on its part to be performed under and pursuant to this Agreement, to perform its obligations hereunder, and to consummate the Transaction;.
(b) The execution, delivery and performance by Seller of this Agreement have been duly authorized by all necessary action, and do not and will not require any consent or approval of Seller’s managing member or equity holders other than that which has been obtained.
(c) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the fulfillment of and compliance with the provisions of this Agreement, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any Requirement of Law, or any organizational documents, agreement, deed of trust, mortgage, loan agreement, other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which it or any of its property is bound, or result in a breach of or a default under any of the foregoing, and Seller has obtained or shall obtain all permits, licenses, approvals and consents of governmental authorities required for the lawful performance of its obligations hereunder. Further, Seller warrants that it shall maintain in good standing all permits, licenses, approvals, and consents of governmental authorities required for the lawful operation of the Facility in accordance with this Agreement, Prudent Utility Practices, and all Requirements of Law.
(d) This Agreement constitutes when executed and delivered by the Seller a legal, valid and binding obligation of the Seller, is legally binding, and is and will be Seller enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and other insolvency, reorganization or similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the Transaction, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it general equitable principles, regardless of whether such enforceability is bound, considered in a proceeding in equity or (ii) any applicable at law;
(d) Seller is the owner of the Transferred Interest and has as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;.
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and or to the knowledge of Seller, threatened action or proceeding affecting Seller before any governmental authority, which purports to affect the legality, validity or enforceability of this Agreement.
(f) Seller shall inform all investors in the Seller of the existence of this Agreement on or before the date of such investment in the Seller.
(g) Seller has no written notice of any threatened taking or condemnation of the Real Propertybeen, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;is and will be a Special Purpose Entity.
(jh) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of not entered into this Agreement or any other documents related thereto with the Real Property has been excavated; actual intent to hinder, delay or defraud any creditor and (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have received reasonably equivalent value in exchange for its obligations under this Agreement. No petition in bankruptcy has been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to filed against Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under neither Seller nor any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller of its constituent Persons has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments ever made an assignment for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under taken advantage of any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;insolvency act for its benefit as a debtor.
(pi) Except as set forth All of the assumptions made in Schedule 6.2(p)the Non-Consolidation Opinion, including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Seller has complied with all of the assumptions made with respect to Seller’s Knowledge, Seller in the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; Non-Consolidation Opinion.
(qj) There are no unrecorded leases effecting mineral rights or promised in connection interests underlying the Facility Premises or otherwise underlying any premises leased or acquired under the Leases and Property Agreements the development or exploration of which would interfere with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites construction or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner operation of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the contracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleadingFacility.
Appears in 1 contract
Samples: Power Purchase Agreement (First Wind Holdings Inc.)
Representations and Warranties by Seller. 5.1 Seller hereby represents makes the representations and warrants to warranties in this Paragraph 5, each and for all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the benefit of the Purchaser as followsClosing:
(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in State of Kansas which it is formed, with all necessary 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, to perform its obligations hereunder, and to consummate the Transaction;.
(b) This Neither the entering into this Agreement constitutes when executed and delivered by 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 valid and binding obligation of the Seller, is legally binding, and is and will be enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;party.
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller Each of the TransactionProperties is zoned to permit the operation of a restaurant thereon, will not constitute (with the giving of notice or the lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner and all improvements on each of the Transferred Interest Properties conform to all existing building, zoning, environmental or other laws and has ordinances, and are in good operating condition and repair as of the Closing Date, title to such Transferred Interest, free and clear of any and all encumbrances, liens, claims;
(e) The Company will be, at the time of Closing, the fee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, and claims, except for the Permitted Exceptions;
(f) There is no litigation, action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and hold the Purchaser harmless against and from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of received any possible future improvements that might create an assessment against any part of the Real Property.
(i) There is no pending, and Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material presently uncured violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the xxxx Xxxxxx has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materialsthose relating to zoning, strippingsbuilding, rocksfire, stumps or concretehealth and safety) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas of any governmental, quasi-governmental authority bearing on the Real Property have been filled construction, operation, ownership or altered without a permit from use of any of the United States Army Corps of Engineers and/or the St. Xxxxx River Water Management District, as applicableProperties.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(md) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has not received no written any notice of any pending widening, modification or threatened governmental proceedings realignment of any street or other fact highway contiguous to either property or condition that any existing or proposed eminent domain proceeding which would limit such accessresult in a taking of all or any part of any of the Properties.
(oe) There are no attachmentsNone of the easements, executionscovenants, assignments for conditions, restrictions or agreements to which any of the benefit Properties is subject interferes with or is breached by the use or operation of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;Properties as presently used and operated as a restaurant.
(pf) Except as set forth in Schedule 6.2(p)Seller has not been served with any litigation, to Seller’s Knowledgeand no arbitration proceedings have been commenced, the Real Property contains no threatened which do or endangered species or endangered or protected habitats or items will affect any aspect of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured Properties or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement 's ability to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and neither party shall have any further rights or its obligations under this Agreement. In addition, Seller is under no obligation 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 Purchaser perform its obligations under this Agreement Agreement.
(g) Adequate gas, telephone, electricity, water and sewer facilities are available to clean up all the Properties, and all such facilities serving the Properties have been paid for such that Buyer will not be subject to charges or perform assessments for capital or hookup costs relating to such facilities.
(h) There are not any remediation written commitments to, or written agreements with, any governmental or quasi-governmental authority or agency materially affecting any of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports Properties which have not been heretofore disclosed by Seller to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing Buyer in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;writing.
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) No oral 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 written contract materialmens' liens being asserted or agreement exists that contains an unperformed obligation or contingent liability relating filed in the future against any of the Properties in respect of any initial construction activities undertaken prior to the Real Property, including, without limitation, contributions of money or land, and Closing.
(iij) Seller has not made been served or notified by any commitment governmental or representation to quasi-governmental authority that (i) any government authorityof the Properties, or any adjoining property, contains or surrounding property ownermay 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, which would used or maintained on, in or under any way be binding 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 Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute or under all the contracts for the purchase of or any portion of the Real Property, and as any of the date hereof, Seller is not aware Properties or the area surrounding any of any default, or an event, except for the passage of time or giving of notice, or both, would constitute a default, in connection with the existing Purchase Contracts;Properties.
(x) Seller is not, and will not be, a person or entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-Terrorism Laws”), including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(yk) As of the Closingused in this Agreement, the Company (i) terms "Environmental Regulations" and "Hazardous Materials" shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the same after Closing as they are received, to the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, obligations, claims or other adverse financial conditions of the Company not previously disclosed to Purchaser which would cause the information previously provided to Purchaser to be materially misleading.following meanings:
Appears in 1 contract
Samples: Purchase and Sale Agreement (New York Bagel Enterprises Inc)
