Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that: (i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation. (ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles. (iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder. (iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date. (v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof. (vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof. (vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property. (viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities. (ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements. (x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing. (xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries. (xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated. (xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents. (xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding. (xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”). (xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing. (xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof. (xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 2 contracts
Samples: Equity Interests Purchase and Sale Agreement (Aspire Real Estate Investors, Inc.), Equity Interests Purchase and Sale Agreement (Aspire Real Estate Investors, Inc.)
Seller’s Representations and Warranties. Seller represents The representations and warrants to Purchaser that:
warranties included in Attachment B (ithe “Representations and Warranties”) Seller are incorporated herein as if set forth in full and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller are a part of this Agreement. If, and prior to Closing, there occurs a material change in the consummation by Seller condition of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities title or the Property or Seller’s ability any matter addressed in the Representations and Warranties, Seller shall immediately notify Buyer as to perform hereunder.
(iv) Except for Permitted Encumbrances the change, and as may be reflected on to offer to extend the Closing Statement deadlines herein to give Buyer a reasonable opportunity to evaluate the change. The Representations and Warranties survive the termination of this Agreement but only with respect to Proration Itemscircumstances and conditions that existed on Closing, all bills and other payments due and payable before provided that, if Buyer shall have knowledge as of the Closing Date with respect to the ownership, operation, and maintenance that any of the Applicable Entities Representations or Warranties of Seller are false or inaccurate, then Seller shall not have any liability or obligation respecting such false or inaccurate Representations or Warranties (and the Property have been paid any indemnification right or will be paid prior to cause of action resulting therefrom shall terminate upon the Closing Date.
). EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS AS SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED AT CLOSING, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or wasteINCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), whichWHETHER EXPRESSED OR IMPLIED, if not correctedINCLUDING, would result in termination of insurance coverage or increase its costs thereforBUT NOT LIMITED TO WARRANTIES WITH RESPECT TO: THE PROPERTY; DEFECTS CAUSED BY ACTS OF THE ORIGINAL SELLER OR DEVELOPER OF THE PROPERTY, (B) any violation of any applicable zoningOR ANY SUPPLIER, buildingCONTRACTOR, healthSUBCONTRACTOR, environmentalOR MATERIALMAN; OR MATTERS PERTAINING TO ZONING, trafficLAND VALUE, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the PropertyOR GOVERNMENTAL APPROVALS.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if, prior to the Closing, Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, when executed upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and delivered if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer, and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Change has occurred, such Seller R&W Change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and Purchaserwarranty to become inaccurate in any material respect (in which case such Seller R&W Change shall be deemed to be a Seller R&W Breach), will constitute and Seller is unable within ten (10) days after notice from Buyer of such R&W Change to eliminate such inaccuracy, Buyer shall have the valid right, as its sole and binding agreement exclusive remedy, to terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of Sellerthis Agreement. If, enforceable against prior to the Closing, Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Buyer shall be entitled to seek and recover from Seller its actual damages incurred on account of the breach by Seller of any one or more of the representations and warranties of Seller made herein, only if (i) the breach thereof is first discovered subsequent to Closing, (ii) the claim thereon is asserted by Buyer to Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
writing on or before the date one hundred eighty (180) days after Closing, (iii) There are no actionsthe amount of any such loss, suitscost, claimsliability, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially damage and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
expense suffered by Buyer (iv) Except when aggregated with all other amounts for Permitted Encumbrances and as which Seller may be reflected on liable in connection with breaches of its representations, warranties or covenants under this Agreement) shall exceed the Closing Statement Material Damage Floor; provided, however, in no event shall the amount of any such loss, cost, liability, damage and expense for which Seller shall be liable with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
such breach (v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, when aggregated with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except damages for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations liable in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote breaches of its representations, warranties or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements covenants under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean ) exceed the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerMaterial Damage Ceiling.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.), Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organizedits partners, validly existing hereby make the representations and warranties set forth in good standing under this Section 6. All of Seller's representations and warranties shall be true and correct as of the laws date of its jurisdiction closing, shall be deemed ratified by Seller's act of formation.
(ii) Seller has full right, powerClosing, and authority any Schedules, documents or information to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance be furnished by Seller shall be updated and furnished to Purchaser at Closing. From and after the date of this Agreement, and until Closing, Seller shall not take any action or make any admission, which would have the consummation effect of violating any of the representations or warranties of Seller contained in this Agreement. Seller has delivered to Purchaser, the documents listed on Exhibit C and warrants that the same, and all information reflected therein, are completely accurate and current in all respects. Purchaser shall rely only on the documents listed on Exhibit C and on the representation and warranties contained in this Agreement. All of the warranties and representations of Seller and its partners shall survive closing and the conveyance of the Property to Purchaser.
(a) The execution of this Agreement and the fulfillment of Seller's obligations hereunder shall not constitute or result in a breach of any term or provision of any existing mortgage, lease or other agreement to which Seller is a party or by which Seller is bound. All persons or entities whose joinder in the Deed would be necessary to convey title to Buyer hereunder have been identified herein as "Seller." This Agreement and all other instruments and documents to be executed and delivered by Seller of the transactions contemplated hereby, to Purchaser hereunder or pursuant hereto have been or will be duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaserconstitute (or will constitute, will constitute as to those instruments and documents to be executed and delivered) the legal, valid and binding agreement obligations of Seller, Seller and enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlestheir respective terms.
(iiib) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser truereceived no written official notice, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any informal written or oral notice of violation (any contemplated condemnation proceedings against the whole or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification part of the Property.
(viiic) Neither The Seller nor has provided to the Buyer a copy of the approved minutes of the Scottsdale City Council Meeting which demonstrates the Property received approval for a use permit for time share in its R-5 zoning classification. Seller has no knowledge of any Applicable Entitymoratoria or similar conditions that will prevent the development and operation upon the Land of residential time share units. Seller has no knowledge of any current violations of any building, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders zoning or other equity owners, nor (B) requirements of any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of applicable governmental authority affecting 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) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entitiesProperty.
(ixd) No Applicable Entity Seller has no knowledge of any rightfact or condition which would result in the termination or reduction of the current access from the Land and Improvements existing public streets; and Seller has no knowledge of any proposed road widening or other construction activity within the vicinity of the Land.
(e) Seller has no knowledge of any latent or patent defect or design deficiency in the foundation, structure, roof, paved areas or mechanical systems of the Improvements, including, without limitation, the heating, ventilation and cooling systems, the electrical system, the plumbing system or the elevators.
(f) Seller has no actual knowledge of any lawsuits presently pending or any lawsuits that have been threatened concerning the Property or any portion thereof, or Seller's title or interest in right to convey the Property or any property portion thereof hereunder, nor has Seller any knowledge of any claims or liens existing or threatened against the Property or any part thereof, other than those filed of record prior to the execution date of this Agreement.
(g) Seller is in sole and undisputed possession of the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is entitled to possession of all or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any portion of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of Property. There are no leases with respect to the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingProperty other than the leases set forth on Schedule 6(g).
(xvh) The Applicable Entities have There are no liabilitiesother contracts, leases, agreements, understandings or other obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) existing with respect to the Property or any portion thereof, other than as are reflected on Exhibit C in this Agreement.
(i) No person, firm, corporation, or other entity has any right or option to acquire the Property, or any part thereof.
(j) Seller has received notice from the City of Scottsdale regarding the formation of the Reatta Pass Improvement District which would result in an assessment against the property. Seller has determined to its own satisfaction that this assessment would benefit the Property by removing it from the existing loans evidencedflood zone upon completion of the improvement. Seller makes no representations or warranties as to this opinion or conclusion and Purchaser must satisfy itself as to this condition. Seller has received no notice and has no knowledge of any other pending liens, secured increased assessments or governed tax rates, or any special assessments to be made against the Property by governmental authority.
(k) Seller is current in all sales and use tax obligations relating to the Existing Loan Documents, Property.
(Bl) Seller is neither a "foreign person" nor "foreign corporation" as those which terms are adequately reflected and reserved against defined in the booksUnited States Internal Revenue Code, records as amended, and financial statements provided to PurchaserSeller shall ratify this warranty by affidavit at the time of closing.
(m) Public water, (C) those which public sanitary sewer, electricity, and the telephone services have been incurred in installed to the ordinary course of business consistent with past practice since Improvements through appropriate easements.
(n) Except as disclosed on Schedule 6(n):
(i) To Seller's actual knowledge, the date Land and Improvements ("Premises") do not contain any Hazardous Materials.
(ii) To Seller's actual knowledge, there are no underground or above-ground storage tanks on or under the Premises, and Seller has no knowledge of the last delivered booksremoval of any underground or above-ground storage tanks from the Premises.
(iii) To Seller's actual knowledge, records and financial statements and which there are not and could not reasonably be expected to become, individually no transformers containing or in contaminated with Hazardous Materials on the aggregate, material in amountPremises, and Seller has no knowledge of the removal of any such transformers from the Premises.
(Div) the ongoing indemnification obligations Seller has not engaged in or permitted any Hazardous Materials Use in, at, under, or in connection with the Regulatory Agreements (as defined below) set forth Premises nor, to Seller's knowledge, has any previous owner or tenant of the Premises engaged in or permitted any Hazardous Materials Use in, at, under, on Schedule 6(a)(xv) (or in connection with the “Ongoing Indemnification Obligations”)Premises.
(xviv) To the extent there are Seller has not received notice or actual knowledge of: (1) any proxies to vote claim, demand, investigation, enforcement, response, removal, remedial or other similar arrangements entered into governmental or regulatory action instituted or threatened, against Seller or the Premises pursuant to any Hazardous Materials Law, (2) any claim, demand, suit or action made or threatened by Sellerany person against Seller or the Premises relating to any form of damage, such proxies loss or injury resulting from or claimed to vote result from, any Hazardous Materials on, about, beneath or other similar arrangements will not affect arising from the Equity Interests Premises or any alleged violation of any Hazardous Material Law; and (3) any communication to or from any governmental or regulatory agency arising out of or in connection with Hazardous Materials on, about, beneath, arising from or generated at the Premises, including without limitation, any way on and after the Closing and will be terminated notice of violation, citation, complaint, order directive, request for information or response thereto, notice letter, demand letter or compliance schedule. If discovered prior to Closing, Seller shall immediately advise Purchaser of any of the claims or communications listed in clauses (1) through (3) above and also shall immediately advise Purchaser of the unrestricted right discovery of Seller any Hazardous Materials on, about, beneath, or arising from the Premises or the discovery of any condition on, arising from the Premises or the discovery of any condition on, about, beneath or arising from the Premises which might give rise to vote liability, the Equity Interests will be transferred to Purchaser at Closingimposition of a statutory lien or require response, removal or remedial action under any Hazardous Material Law.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviiivi) As used used, in this Agreement, “Seller’s knowledge” "Hazardous Materials" shall mean "Hazardous Substances" as defined under the actual present knowledge Comprehensive Environmental Response, Compensation and Liability Act of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller1980 (42 U.S.C. Section 9501 et seq.)
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resort Investment LLC)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:, except as set forth on SCHEDULE 4.2 delivered by Seller to Purchaser concurrently herewith and attached hereto (the "DISCLOSURE SCHEDULE"):
(ia) Seller is a corporation duly organized and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction the State of formation.
(ii) Delaware. Except for the Court's entry of the Sale Order, Seller has full right, power, power and authority to execute enter into and deliver perform this Agreement and all documents, agreements and instruments to consummate the purchase and sale transactions provided for herein without obtaining any further consents be executed by Seller pursuant to or approvals fromin connection with this Agreement (collectively, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals"SELLER'S ANCILLARY DOCUMENTS"). The executionexecution and delivery by Seller of this Agreement and Seller's Ancillary Agreements, delivery and the performance by Seller of all of its obligations hereunder and thereunder, have been duly authorized and approved prior to the date hereof by all necessary corporate or other requisite action, except for the Court's entry of the Sale Order. This Agreement has been, and Seller's Ancillary Documents will be, duly executed and delivered by duly authorized officers of Seller.
(b) This Agreement constitutes, and Seller's Ancillary Documents will constitute, valid and legally binding obligations of Seller, enforceable against Seller in accordance with their respective terms (except to the extent that enforcement may be affected by the availability of injunctive relief, specific performance and equitable remedies).
(c) Except for the Court's entry of the Sale Order and the consents and releases set forth on SCHEDULE 4.2 (the "CONSENTS") and subject to the expiration or termination of all applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "XXXX-XXXXX ACT"), no consent, release, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for the execution and delivery of this Agreement, Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated herebyby this Agreement and Seller's Ancillary Documents. Except for the Court's entry of the Sale Order and the Consents and subject to the expiration or termination of all applicable waiting periods under the Xxxx-Xxxxx Act, neither the execution and delivery by Seller of this Agreement and Seller's Ancillary Documents, nor the consummation by Seller of the transactions contemplated hereby and thereby, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Certificate of Incorporation, By-Laws, any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or any governmental authority or of any arbitration award or any agreement, instrument, permit or authorization held by Seller or included within the Purchased Assets, in each case to which Seller is subject or by which Seller is bound, which conflict or breach is reasonably likely to have been duly and validly authorized by all necessary action a material adverse effect on the part of Seller. This Business, the Purchased Assets, the transactions contemplated by this Agreement, when executed or completion of GM Presses 3 and delivered 4 (as herein defined) as contemplated by Seller and Purchaserthe GM purchase order in effect on October 1, will constitute 2000 (the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles"ORIGINAL GM PURCHASE ORDER").
(iiid) There are no actions[Intentionally Omitted]
(e) Seller has good title to and, suits, claims, assessments, or proceedings pending or, subject only to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance Court's entry of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances Sale Order and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance receipt of the Applicable Entities Consents, the power to sell the Purchased Assets, free and clear of any Claims, as set forth in the Property have been paid or will be paid prior title insurance policy, referred to in Section 6.2 (j) on the Closing Date.
(vf) The rent roll attached hereto as Schedule 6(a)(vThere are (i) is a trueno licenses or other agreements used by Seller (or authorizing Seller or granting Seller rights) in the sale of, in the ordinary course of business, any inventory or other assets included in the Purchased Assets, and (ii) no material permits or governmental approvals used in the operation of the Business or relating to the real property described on SCHEDULE 4.2. SCHEDULE 4.2 correctly and completely lists all equipment leases and other leases or agreements used in the operation of the Business or relating to the real property described on SCHEDULE 4.2 ("MATERIAL CONTRACTS"); and, except for items shown in open purchase orders (complete and correct and complete listing copies of all Leasesof which have been made available to Purchaser or IHI (as herein defined)), all Material Contracts are included in the Purchased Assets. Complete and accurate copies of all Tenants thereunderMaterial Contracts have previously been delivered to Purchaser or IHI. SCHEDULE 4.2 also correctly and completely lists (x) all Inventory (as defined herein) and the number of items in each category of such Inventory and (y) all Equipment (as defined herein) used in the operation of the Business or relating to the real property described on SCHEDULE 4.2. All such Inventory and Equipment are included in the Purchased Assets. The Purchased Assets listed on SCHEDULE 1.2 include all raw materials, as of work in process, spare parts and other Inventory on hand on the date of the rent rollinspection referred to in Section 4.1(i). All work in process inventory of the presses covered by Contract Nos. WHS 14585 and WHS 14586 between General Motors Corporation ("GM") and Seller ("GM PRESSES 3 AND 4"), and otherwise accurately reflects, is in all material respects, materially the subject matter thereof same condition as of on the date of such inspection. "ORDINARY COURSE OF BUSINESS", "OPERATION OF THE BUSINESS" and similar phrases, shall mean, for the rent roll. Seller has delivered or made available to Purchaser truepurposes of this Agreement, correct and complete copies of all Leases and all amendments thereto or modifications thereofthe Business as historically conducted in the ordinary course by Seller.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xivg) Except as set forth in Schedules filed with the Organizational Documents Court, (i) there is no litigation or proceeding, in law or in equity, pending against Seller with respect to the Business or the Purchased Assets and there are no proceedings or governmental investigations before any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on commission or prior to Closingother administrative authority, pending against or, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating 's Knowledge, affecting Seller with respect to the voting, dividend rights or disposition of the Equity InterestsBusiness, and (Bii) to Seller's Knowledge, there are is no preemptive claim, litigation or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements proceeding (in law or commitments of any character under which Seller or any other person or entity is or may become obligated to sellequity), or giving any individual governmental proceeding or entity a right to acquire, investigation anticipated or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) threatened against Seller with respect to any existing loans evidenced, secured products liability matters involving Seller or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofits products. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “"KNOWLEDGE" the case of Seller’s knowledge” , shall mean the actual present knowledge of Jun SakumotoXxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxx, and Xxxx X. Xxxxxxxxxx, Xx. without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Sellerinvestigation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allied Products Corp /De/)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is or will be duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a rolls delivered to Purchaser and dated October 31, 2020 are true, correct and complete listing listings of all Leases, and all Tenants thereunder, as of the date of the rent rollsuch date, and otherwise accurately reflectsreflect, in all material respects, the subject matter thereof as of the date of the rent rollsuch date. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None Other than the Subsidiaries, none of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”), and (E) the Applicable Entities’ liabilities, obligations and commitments under the Purchase Agreements, including, without limitation, the obligations to acquire the Acquisition Property.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) Schedule 1(c) is a true, correct and complete listing of all Purchase Agreements under which the Real Property Owners have any rights or obligations to acquire the Acquisition Property. Seller has delivered or made available to Purchaser true, correct and complete copies of all Purchase Agreements and all amendments thereto or modifications thereof. The Purchase Agreements are in full force and effect and, to Seller’s knowledge, no uncured default or event of default exists thereunder.
(xix) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Equity Interests Purchase and Sale Agreement (Aspire Real Estate Investors, Inc.)
Seller’s Representations and Warranties. Seller hereby represents to Buyer that the facts recited below are true and accurate and that if prior to the date of Closing Seller discovers that one or more of such facts are untrue or inaccurate it will inform Buyer in writing of it discovery. The obligation of Buyer to consummate this transaction shall be contingent upon the lack of any material variance with respect to the truth and accuracy of all such facts as of the date scheduled for Closing, notwithstanding the fact that, with respect to representations or warranties made to the best of Seller's knowledge, Seller had no knowledge of the untruth or inaccuracy of such facts. It is expressly agreed that no examination or investigation of the Property or of the Operational Information pertaining thereto by or on behalf of Buyer shall in any way modify, affect or diminish the representations and warranties of Seller contained herein, and that such representations and warranties of Seller shall survive Closing for a period of six (6) months. In accordance with the immediately preceding sentences, Seller represents and warrants to Purchaser thatBuyer as follows:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(iia) Seller has full right, power, power and authority and has taken all requisite action to execute and deliver enter into this Agreement Contract and to consummate sell and convey the purchase Property to Buyer as provided in this Contract and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (to carry out its obligations as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesset forth hereunder.
(iiib) There To Seller's knowledge, there are no actionsstructural or other defects, suitsincluding but not limited to, claimsdefects in the plumbing, assessmentsheating, air conditioning, foundation or proceedings pending or, to electrical wiring of any of the Improvements.
(c) To Seller’s 's knowledge, threatened that would reasonably be expected to materially and adversely affect the continued ownership, operation, or maintenance use and occupancy of the Applicable Entities Land or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor Improvements do not violate any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other similar law, code, ordinance, rule order, regulation or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to restrictive covenant. To Seller’s 's knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments violations of any character under which Seller federal, state, county or municipal law, ordinance, order, regulation or requirement affecting any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any portion of the Equity Interests owned Land, Improvements or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingPersonal Property.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Contract of Sale (American Industrial Properties Reit Inc)
Seller’s Representations and Warranties. Seller acknowledges and agrees that the following are bargained for assurances and inducements for Purchaser to enter into this Agreement. Seller represents and warrants to Purchaser thatas follows:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(iia) Seller has full right, power, all necessary corporate power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvalscontemplated hereby. The execution, execution and delivery and performance of this Agreement by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, hereby have been duly and validly authorized by all necessary action corporate action, and no other corporate proceedings on the part of SellerSeller are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement, when Agreement has been duly and validly executed and delivered by Seller and, assuming the due authorization, execution and Purchaserdelivery by the other Party hereto, will constitute the constitutes a legal, valid and binding agreement obligation of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesterms.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xib) Other than the Equity Interests, neither Seller nor any other party has equity interests Company's rights and interest under the Company License and the rights to use "Xxxxxxxx Gold" in its corporate name or rights to acquire equity interests and interest held by Xx. Xxxxxxxx Gold, Seller owns all right, title and interest in any Applicable Entity. None of the Applicable Entities haveand to, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good the valid right to use, the Trademarks and valid title to the Equity InterestsIntangible Assets, free and clear of all Encumbrances, and has full right and power to sell, assign, convey and otherwise transfer all of its right, title and interest in and to the Trademarks and Intangible Assets to Purchaser. Seller has not granted (or entered into any encumbrances, except for agreement to grant) any encumbrances imposed license or any other rights in the Trademarks and Intangible Assets to any Person other than (i) under the Organizational DocumentsCompany License and (ii) other rights retained or reserved by Xx. The Equity Interests are duly authorizedXxxxxxxx Gold under the 1998 Purchase Agreement. Upon the consummation of the transactions contemplated by this Agreement, validly issuedPurchaser will have good, fully paid marketable and nonassessableunencumbered right, but are not certificatedtitle and interest in and to all of Seller's right, title and interest in the Trademarks and Intangible Assets subject to the license or other rights therein possessed by the Company under the Company License and the rights to use "Xxxxxxxx Gold" in its corporate name or rights and interest therein held by Xx. Xxxxxxxx Gold.
(xiiic) Assuming that Purchaser has the requisite power Schedule A sets forth a true and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing complete list or description of all of Trademarks and Intangible Assets owned by Seller that are used or held for use by the Equity InterestsCompany. The Trademarks and Intangible Assets include all assets and rights owned by Seller that are used or held for use by the Company, and upon Purchaser’s payment of there is no other asset or rights owned by Seller that is necessary to conduct the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational DocumentsCompany's business.
(xivd) Except as set forth in The use of the Organizational Documents Trademarks and Intangible Assets by Seller or in the Company does not conflict with, infringe, misappropriate or otherwise violate the Intellectual Property or other proprietary rights, including rights of privacy, publicity and endorsement, of any third party, and no Actions or claims are pending or, to the best knowledge of Seller after due inquiry, threatened against Seller or any of its Affiliates alleging any of the existing loan documents listed on Schedule 6(a)(xiv) (foregoing or challenging or seeking to deny or restrict the “Existing Loan Documents”) which will use by Seller or the Company of any of the Trademarks and Intangible Assets. The Trademarks and Intangible Assets have not be paid off on been adjudged invalid or prior unenforceable in whole or part, and to Closingits knowledge, to Seller’s knowledge (A) are valid and enforceable. None of the Equity Interests are not Trademarks and Intangible Assets is subject to any arrangement outstanding consent, settlement or Governmental Order restricting its use or otherwise relating to the voting, dividend rights that would impair its validity or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingenforceability.
(xve) The Applicable Entities have no liabilitiesNo actions are necessary (including filing of documents or payment of fees) within 90 days after the date hereof to maintain or preserve the validity or status of patents, obligations or commitments of any nature whatsoeverpatent applications, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against other registrations and applications for registration included in the books, records Trademarks and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection Intangible Assets with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (United States Patent and Trademark Office or the “Ongoing Indemnification Obligations”)United States Copyright Office.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
that (i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xiia) Seller is the record true, lawful and beneficial exclusive owner of the Equity Interests its Accounts; (b) each Purchased Account (i) is and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the remain a bona fide existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed obligation created by the Existing Loan Documents, (B) those which are adequately reflected sale and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred delivery of goods or services in the ordinary course of business consistent with past practice since the date its business, (ii) is not owing by an Account Debtor that is an affiliate of the last delivered booksSeller or in which Seller otherwise has an interest, records (iii) is unconditionally owed without any Dispute, and financial statements and (iv) is not subject to any special terms of payment which are not shown on the face of the Invoice therefor; (c) none of the Purchased Accounts arise from a sale directly to a consumer; (d) all amounts owing on the Purchased Accounts are owing in United States dollars and could any taxes or fees relating to such Purchased Accounts are solely Seller’s responsibility; (e) prior to the sale of any Purchased Account to Purchaser, the Account Debtor on any Purchased Account is not reasonably be expected subject to becomeany bankruptcy or other insolvency proceeding, individually and Seller has not received notice, and is not otherwise aware, of any actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable Account Debtor regarding such Purchased Account; and (f) the Collateral (including all Purchased Accounts) is free and clear of all liens and security interests other than the security interests granted in favor of Purchaser. Seller further represents and warrants that (a) Seller is fully authorized to enter into this Agreement; (b) this Agreement constitutes a legal and valid obligation that is binding upon Seller and that is enforceable against it; (c) Seller is in good standing in the aggregatejurisdiction of its organization and is duly qualified, material in amountappropriately licensed, and in good standing in each other jurisdiction in which it is required to be licensed; (Dd) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote no pending actions, suits, or other similar arrangements entered into by legal proceedings of any kind (whether civil or criminal) now pending (or, to its knowledge, threatened) against Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests adverse result of which would in any way on material respect affect its property or financial condition, or threaten its continued operations; and after (e) Seller will provide notification of any related or affiliated entities created during the Closing and will be terminated prior to Closing, and the unrestricted right term of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller makes the following representations and warranties which shall be true and correct as of the Close of Escrow. If prior to the Close of Escrow, Seller gives Buyer written notice of any facts or circumstances beyond the reasonable control of Seller which would render any such representations or warranties untrue as of the Close of Escrow, such occurrence shall not be considered default by Seller and Buyer’s sole right shall be to waive such representation and warranty and proceed with the Close of Escrow or terminate this Agreement and cancel the Escrow, in which case Escrow cancellation fees shall be paid by Seller and the Deposit shall be returned to Buyer. Seller shall not intentionally cause any representation to become untrue. For purposes of this Section 7, the phrase “to the best of Seller’s knowledge” shall mean the current actual knowledge of Xxxxx Xxxxx (as distinguished from constructive or other implied knowledge), without investigation or inquiry or a duty to investigate or inquire. In no event shall Xxxxx Xxxxx have any personal liability with respect to this Agreement or the representations or warranties contained herein. Seller hereby represents and warrants to Purchaser that:
(i) Buyer that Xxxxx Xxxxx has been actively involved in the ownership, management and October 31, 2003 Page 10 of 18 Table of Contents Purchase and Sale Agreement Pasadena Corporate Center Pasadena, California development of the Property since its acquisition by Seller and each Applicable Entity is the person principally responsible for the management, operation and development of the Property.
7.1 Seller is duly organized, validly existing existing, and in good standing under the laws of the state of its jurisdiction of formation.; and
(ii) 7.2 Seller has the full right, power, power and authority to execute execute, deliver and deliver perform its obligations under this Agreement and to consummate Agreement.
7.3 Neither the purchase and sale transactions provided for herein without obtaining any further consents execution or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and nor the consummation by Seller of the transactions transaction contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaserherein, will conflict with, or constitute or result in a breach of, any contract, license or undertaking to which Seller is a party or by which the valid and binding agreement Property is bound, resulting in the creation of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesany lien or encumbrance upon the Property.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to 7.4 To the best of Seller’s knowledge, no legal or administrative proceeding is pending or threatened that against Seller or the Property which would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability right to perform hereunderconvey fee title to the Property to Buyer.
(iv) Except for Permitted Encumbrances and as may be reflected on 7.5 To the Closing Statement with respect to Proration Itemsbest of Seller’s knowledge, all bills and other payments due and payable before the Closing Date there are no condemnation or eminent domain proceedings pending or threatened with respect to the ownership, operationProperty, and maintenance to the best of Seller’s knowledge there are no facts or conditions with respect to the Property which might give rise to such action or proceeding.
7.6 There are no pending requests or applications by Seller for any of the Applicable Entities matters described in clauses (a), (b) or (c) of Section 13(iii).
7.7 The execution and delivery of this Agreement and the performance by Seller of all transactions contemplated by this Agreement do not require any consent or approval of any public or private authority which has not already been obtained.
7.8 Seller has not received any notice that the Property is not in material compliance with all applicable laws, except as may be disclosed in the Due Diligence Materials or except for such failures to comply, if any, which have been paid or will be paid prior to the Closing Dateremedied.
(v) 7.9 The rent roll attached hereto as Schedule 6(a)(v) is a construction required to be completed by Landlord in connection with the Nextel Lease and the Xxx Xxx Lease to deliver the Phase III Building to those tenants has been substantially completed.
7.10 To the best of Seller’s knowledge, the documents delivered to Buyer pursuant to this Agreement constitute all of the Contracts and are true, correct and complete listing originals or copies of all Leases, the originals and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, documents executed by Seller in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser connection with this Agreement are true, correct and complete copies of all Leases and all amendments thereto or modifications thereofcomplete.
7.11 Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (vias those terms are defined in the Internal Revenue Code).
7.12 Seller has not (a) Schedule 6(a)(vicommenced a voluntary case, or had enter against it a petition, for relief under any federal bankruptcy act or any similar petition, order or decree under any law relating to bankruptcy, insolvency or other relief for debtors, (b) caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator, liquidator or similar official in any federal, State or foreign judicial or non-judicial proceedings, to hold, administer and/or liquidate all or substantially all of its property, or (c) made an assignment for the benefit of creditors.
7.13 There are no outstanding bonds. The respective representations and warranties made by Seller in Sections 7, above, shall survive the Close of Escrow for a period of six (6) months and shall not merge into the Deed. Each of the representations and warranties of Seller and Buyer that is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, to survive the Closing shall be deemed remade as of the date thereofClose of Escrow. After the Close of Escrow, and otherwise accurately reflectsso long as Buyer’s claim in made within six (6) months following the Close of Escrow, in all material respectsSeller shall October 31, the subject matter thereof as 2003 Page 11 of the date thereof. Seller has delivered or made available to Purchaser true18 Table of Contents Purchase and Sale Agreement Pasadena Corporate Center Pasadena, correct California indemnify, defend, reimburse and complete copies of all License Agreements hold harmless Buyer from and against any and all amendments thereto claims, demands, losses, obligations, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs, whether or modifications thereof.
(viinot any action is filed or prosecuted) Except as otherwise disclosed arising from or relating to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice untruth of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (representations and warranties made by Seller pursuant to Section 7. Seller agrees to maintain liquid assets of no less than $500,000 from the “Existing Loan Documents”) which will not be paid off on Close of Escrow until March 4, 2004 and to maintain liquid assets of no less than $250,000 from March 4, 2004 to June 5, 2004 solely for the purpose of remedying all or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments portion of any character under which Seller or any other person or entity is or claim that may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingbe timely made hereunder by Buyer.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatBuyer that as of the date it executes this Agreement and as of Closing:
(ia) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of the state of its jurisdiction of formation.
(iib) Seller is not a “foreign person” as defined in §1445 of the Internal Revenue Code of 1986, as amended; nor is Seller a “nonresident person” as such term is defined under the Section 235-68 of the Hawaii Revised Statutes.
(c) To Seller’s actual knowledge, there are no actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property (“Proceedings”). Seller shall promptly notify Buyer of any such proceedings or litigation of which Seller becomes aware.
(d) Seller has the full right, power, power and authority to execute execute, deliver and deliver perform its obligations under this Agreement.
(e) To Seller’s actual knowledge, the Leases delivered to Buyer by Seller during the Approval Period are accurate in all material respects and are in full force and effect. To Seller’s knowledge, neither the Seller nor any Lessee is in default under the Leases. Seller has not previously assigned its rights under the Leases.
(f) To Seller’s knowledge, there exist no material defaults, events which, with the giving of notice or passage of time, or both, would give rise to a termination right (i) by Seller as Landlord under the Leases, (ii) by any Lessee under the Leases or (iii) by any party to the Contracts.
(g) To Seller’s actual knowledge, the Contracts delivered to Buyer by Seller during the Approval Period are accurate in all material respects and are in full force and effect. Seller has not previously assigned its rights under the Contracts.
(h) This Agreement and all agreements, instruments and documents provided to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance be executed by Seller of this Agreement, are and the consummation by Seller as of the transactions contemplated herebyClosing will be herein duly authorized, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, are and will constitute the valid and be binding agreement of upon Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iiii) There are no actionsNo attachments, suitsexecution proceedings, claimsassignments for the benefit of creditors, assessmentsinsolvency, bankruptcy, reorganization, or other proceedings are pending oror threatened against Seller, to nor are any such proceedings contemplated by Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(viij) Except as otherwise disclosed to Purchaser in writingset forth on Exhibit N attached hereto and made a part hereof, neither Seller nor any Applicable Entity has not received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap liens or other law, code, ordinance, rule legal actions to be assessed or regulation, which anyone claims or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of has a right to claim against the Property.
(viiik) Neither Seller nor any Applicable Entity, nor, to To Seller’s knowledge, (A) any of their respective affiliatesthe Property complies with all applicable Federal, partnersState and municipal laws, membersordinances, shareholders rules and regulation, including, but not limited to zoning and building codes, rules or other equity ownersregulations, nor (B) any of their respective employeesfire codes, officersrules or regulations, directorsand environmental laws, representatives rules or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entitiesregulations.
(ixl) No Applicable Entity Seller has not retained any rightbrokers or agents in connection with this agreement. All representations and warranties of Seller contained herein shall survive the execution and delivery of this Agreement, title or interest in any property other than the Property Assignment and the Closing for a period of six (6) months from the Closing, and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications theretoclaim for breach thereof must be filed, if anyat all, and all company minutes, member or partner consents and other organizational documents within such six (collectively, the “Organizational Documents”6) have been provided to Purchasermonth period. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither aggregate liability of Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed all claims made by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date Buyer under this Section 5.1 of the last delivered books, records and financial statements and which are not and could not reasonably Agreement shall be expected to become, individually the lesser of actual damages or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)$100,000.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:that the following are true, complete and correct as of the Effective Date and shall be true, complete and correct as of each Closing Date (with respect to the Properties being transferred and conveyed as of such Closing Date):
(ia) Seller and each Applicable Entity is duly organized, validly existing existing, and in good standing under the laws of its jurisdiction of formation.
(ii) the State in which Seller was incorporated. Seller has full right, power, all requisite corporate power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvalscontemplated hereby. The execution, execution and delivery and performance of this Agreement by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have hereby has been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of SellerSeller are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement, when Agreement has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery of this Agreement by Purchaser, will constitute constitutes the legal, valid and binding agreement obligation of Seller, enforceable against Seller in accordance with its terms subject terms, except as may be limited by (i) any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to principles creditors' rights, and (ii) the law of bankruptcy fraudulent transfer and general equitable principlesconveyance.
(b) Neither the execution and delivery of this Agreement nor its performance by Seller will conflict with or result in the breach of any contract, agreement, or Applicable Laws to which Seller is a party, other than Leases, ground leases or Permitted Exception documents for which Required Consents are necessary as set forth in Section 5.2(c).
(c) No approvals, consents, authorizations, declarations, registrations or notices of or to any Governmental Entity that have not been received or made is required by or with respect to Seller in connection with the execution, delivery and performance of this Agreement by Seller or the consummation by Seller of the transactions contemplated hereby except for (i) the filing of any premerger notification and report forms and the expiration or termination of any waiting periods required by the HSR Act, (ii) any applicable approvals, consents, authorizations, declarations, registrations or notices under any pharmacy regulations or to any Governmental Entities or third party administrators in connection with the transactions contemplated under Article II ("PHARMACY APPROVALS"), and (iii) There are no actionsany other approvals, suitsconsents, claimsauthorizations, assessmentsdeclarations, registrations or proceedings pending ornotices that, to Seller’s knowledgeif not made or obtained, threatened that would reasonably be expected to not materially and adversely affect the ownership, operation, or maintenance ability of the Applicable Entities or the Property or Seller’s ability Seller to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business obligations under regulations of 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) this Agreement or under any statuteinstrument, executive order (including the September 24, 2001, Executive Order Blocking Property document or agreement required to be executed and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents delivered pursuant hereto (collectively, the “Organizational Documents”"RELATED AGREEMENTS") have been provided or to Purchaser. The Organizational Documents are in full force and effect and, except to consummate the extent approved by Purchaser, shall not be amended, modified, supplemented transactions contemplated hereby or assigned prior to Closingthereby.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xiid) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity InterestsPersonal Property, free and clear of all liens and encumbrances.
(e) Seller has not entered into any encumbrancescurrently effective agreement to lease (other than the Leases), sell, mortgage or otherwise encumber or dispose of its interest in any of the Transferred Assets or any part thereof (other than currently effective Subleases, or otherwise in the ordinary course of business), except for this Agreement, any Permitted Exceptions and mortgages, deeds of trust or other encumbrances imposed under that will be satisfied and released from the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificatedProperties at or before the Closing.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xivf) Except as set forth on Schedule 8.1(f) attached hereto, to the knowledge of Seller, Seller has not received any written notice that the Transferred Assets or any part thereof are presently in the Organizational Documents or violation in any material respect of any Applicable Laws, or any covenants or restrictions of record applicable to the particular Transferred Assets, provided that notwithstanding anything to the contrary herein, the provisions of this Section 8.1(f) relating to Violations shall be applicable only as of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to ClosingEffective Date, to Seller’s knowledge (A) the Equity Interests are not subject to and any arrangement restricting or otherwise relating Violations issued with respect to the voting, dividend rights or disposition of Properties subsequent to the Equity Interests, and (BEffective Date shall be governed by Section 5.1(d) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandinghereof.
(xvg) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (Except as defined below) set forth on Schedule 6(a)(xv) (8.1(g), to the “Ongoing Indemnification Obligations”)knowledge of Seller, there is no action, proceeding or investigation pending or threatened against or involving the Transferred Assets or against Seller with respect to the Transferred Assets before any court or governmental department, commission, board, agency or instrumentality.
(xvih) To the extent there are Except as set forth on Schedule 8.1(h) attached hereto, Seller has not received written notice of any proxies to vote proposed material reassessment of any Property for purposes of real estate taxes. Except as set forth on Schedule 8.1(h-1), Seller has not received written notice of any special or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in general assessments affecting any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at ClosingProperty.
(xviii) Schedule 6(a)(xvii) is a true, correct and complete listing of 1.1(b)-1 describes all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereofLeases, including all amendments, modifications and otherwise accurately reflects, in revisions thereof (all material respects, of which are deemed included within the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.term
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and --------------------------------------- warrants to Purchaser that:
(ia) Seller is a duly organized and each Applicable Entity is duly organized, validly existing and corporation, is in good standing under in the laws State of its jurisdiction of formation.
(ii) Seller Delaware and has full right, power, and authority power to execute and deliver enter into this Agreement and to consummate the purchase perform its obligations under this Agreement.
(b) The execution and sale transactions provided for herein without obtaining delivery of this Agreement has been duly authorized by all necessary and appropriate action of Seller.
(c) No consent or approval of any further consents or approvals fromperson, entity, or the taking of any other actions governmental authority is required with respect to, any third parties, other than obtaining or delivering (as applicable) to the Regulatory Approvals. The execution, execution and delivery and performance of this Agreement by Seller of this Agreement, and or the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on thereby or the part of Seller. This Agreement, when executed and delivered performance by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesobligations under this Agreement.
(iiid) There To the best of Seller's actual knowledge, there are no actions, suits, claims, assessments, leases or proceedings pending or, other similar agreements affecting all or any portion of the Property except those creating the Leasehold Estates and except as set forth in Exhibit B to --------- this Agreement. To the best of Seller’s 's actual knowledge, threatened that would reasonably be expected to materially the lease agreements creating the Leasehold Estates and adversely affect the ownership, operation, or maintenance all of the Applicable Entities or leases (the Property or Seller’s ability "LEASES") described in Exhibit B are in full force and effect, there are no material defaults by any --------- party thereunder, and true and complete copies of the lease agreements creating the Leasehold Estates and the Leases and all material correspondence, instruments and documents related to perform hereunderthe Leases have been provided to Purchaser.
(ive) Except for Permitted Encumbrances and To the best of Seller's actual knowledge, there are no Hotel Contracts or similar agreements affecting the Property except as may be reflected on set forth in Exhibit C to this Agreement. To the Closing Statement with respect to Proration Itemsbest of Seller's actual knowledge, all bills of --------- the Hotel Contracts and other payments due the Franchise Agreement are in full force and effect, there are no material defaults by any party thereunder, there are not now nor will there be any brokerage commissions or similar fees payable before after Closing in connection with any of the Closing Date with respect Leases and true and complete copies of the Hotel Contracts and the Franchise Agreement and all instruments and documents related to the ownership, operation, and maintenance of the Applicable Entities Hotel Contracts and the Property Franchise Agreement have been paid or will be paid prior provided to the Closing DatePurchaser.
(vf) The rent roll attached hereto as Schedule 6(a)(v) is a trueTo the best of Seller's actual knowledge, correct all Permits necessary for the operation of the Hotel are set forth in Exhibit D to this Agreement and, to --------- the extent transferable under applicable law, will be transferred to Purchaser at the Closing. To the best of Seller's actual knowledge, the Permits are in full force and complete listing effect, Seller has received no notice of all Leasesany material violations thereof, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct true and complete copies of all Leases and all amendments thereto or modifications thereofof the Permits have been delivered to Purchaser.
(vig) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser truereceived no notice of, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writingand, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent receivedbest of Seller's actual knowledge, such violation has been curedthere are no material violations of, law, ordinances, orders or regulations ("LAWS") from any insurance companies, of governmental agencies or quasi-governmental authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards including, without limitation, those related to environmental, labor or dangers, nuisance or wasteemployment matters), whichwhich would have a material adverse effect on the operation of the Hotel.
(h) To the best of Seller's actual knowledge, if there is no litigation, action, or proceeding pending or threatened relating to the Property or the transactions contemplated by this Agreement, including, but not correctedlimited to, would result in termination of insurance coverage or increase its costs therefor, (B) any those alleging the violation of any applicable zoningLaws pertaining to employment or employment practices, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.except as disclosed on Exhibit E attached hereto. ---------
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xiii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer will provide to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
within five (xiv5) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xivbusiness days (i) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct true and complete copies of all Regulatory Agreements bills for real estate and all amendments thereto or modifications thereofpersonal property taxes and assessments for the 1996 tax year and the two immediately preceding tax years and (ii) a true and complete list of the current Hotel Employees together with a schedule setting forth the compensation and fringe benefits (including, but not limited to, benefit plans) accorded to such Hotel Employee.
(xviiij) As used No Hotel Employees are employed under union agreements, collective bargaining agreements or similar arrangements except as disclosed on Exhibit F --------- attached hereto.
(k) Seller owns good and indefeasible title to the Furnishings (other than those items leased pursuant to equipment leases described in this AgreementExhibit C) --------- subject only to the Permitted Exceptions.
(l) With the exception of a petroleum fuel storage tank previously removed from the Property in accordance with applicable law, “there are not now nor during Seller’s knowledge” shall mean 's ownership of the Property, nor to Seller's actual present knowledge have there ever been, any toxic or hazardous wastes or substances used, generated, stored, treated or disposed of Jun Sakumotoon the Property. Seller hereby indemnifies Purchaser from and against any loss, liability, claim or expense, including, without regard to any imputedlimitation, implied or constructive knowledgeremediation costs, without independent inquiry or duty of investigation engineering fees and reasonable attorneys fees and expenses which Purchaser may incur by reason of such person or any other officer, director, partner and/or member of Sellerrepresentation being false.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Southmark San Juan Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(ia) Seller has been duly organized and each Applicable Entity is duly organized, validly existing and as a limited partnership in good standing under in the laws State of its jurisdiction of formation.
(ii) Texas. Seller has the full right, power, right and authority and has obtained any and all consents required to execute and deliver enter into this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of cause to be consummated the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This AgreementAgreement has been, when executed and all of the documents to be delivered by Seller at the Closing will be, authorized and Purchaserexecuted and constitute, or will constitute constitute, as appropriate, the valid and binding agreement obligation of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlestheir terms.
(iiib) There are Seller is not a debtor in any voluntary or involuntary proceedings in bankruptcy, reorganization or similar proceedings under the Federal bankruptcy laws or under any state laws relating to the protection of debtors, and has not made a general assignment for the benefit of its creditors.
(c) Seller is not a “foreign person,” “foreign trust” or “foreign corporation” within the meaning of the United States Foreign Investment in Real Property Tax Act of 1980 and the Internal Revenue Code of 1986, as subsequently amended.
(d) Seller has not received any written notice, and has no actions, suits, claims, assessments, or proceedings pending or, to Seller’s actual knowledge, of (i) any pending or threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or litigation against the Property or Seller’s ability to perform hereunderagainst Seller arising out of the ownership of the Property, or (ii) any pending or threatened condemnation proceeding that affects the Property.
(ive) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance The copy of the Applicable Entities and the Property have been paid or will Lease to be paid prior delivered to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) Purchaser pursuant to this Agreement is a true, correct and complete listing of all Leases, and all Tenants thereunder, as copy of the date of the rent rollLease, including all amendments and otherwise accurately reflects, in all material respectsmodifications thereto. To Seller’s knowledge, the subject matter thereof as of the date of the rent rollLease is in full force and effect in accordance with its terms without any monetary default or any material non-monetary default thereunder by Tenant. Seller has not received written notice from Tenant and has no actual knowledge of any default by Seller under the Lease that remains uncured. If the tenant estoppel certificate delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property Lease contains any statement of fact, information or other matter that is inconsistent with the matters stated in Seller’s representations in this Section 6(e) and such inconsistency is satisfactory to Purchaser in its sole discretion, or otherwise is expressly permitted by this Agreement, such tenant estoppel certificate shall control and Seller shall have no liability for any claim based upon a breach of representation regarding such statement of fact, information or other matter contained in such tenant estoppel certificate.
(including health hazards f) Seller has not received written notice from any governmental or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation quasi-governmental agency and has no actual knowledge of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of delinquent assessments against the Property.
(viiig) Neither Seller nor has not received any Applicable Entitywritten notice from any governmental authority and has no actual knowledge that the Property, noror any portion thereof, fails to comply in any material respect with any applicable laws, ordinances, regulations, statutes, rules and regulations relating to the ownership or Seller’s development of the Property or any part thereof that has not been corrected, except as may be reflected by the Information.
(h) The Property Agreements delivered to Purchaser pursuant to Section 3(a) hereof. are in full force and effect, and, to Seller’s knowledge, Seller has not received written notice from any other party to such Property Agreements of any default by Seller thereunder that remains uncured.
(Ai) Except for the Property Agreements and the existing property management agreement between Seller and its property manager, Stream Dallas Office, L.P. (which Seller will terminate effective as of the Closing) or as otherwise disclosed to Purchaser, Seller is not a party to any agreements for services, supplies or materials affecting the use, operation or management of their respective affiliatesthe Property that will bind Purchaser or the Property after Closing. The Property Agreements delivered to Purchaser pursuant to Section 3(a) hereof will be true, partners, members, shareholders or other equity owners, nor complete and correct copies of all such Property Agreements in Seller’s possession.
(Bj) Purchaser has no obligation to continue to employ any persons presently employed by Seller at the Property.
(k) Seller is currently in compliance with and shall at all times during the term of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity this Agreement (including any extension thereof) remain in compliance with whom U.S. persons or entities are restricted from doing business under the regulations of 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) or under and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entitiesrelating thereto.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xiil) Seller is authorized to permit the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing disclosure of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (SEC Filing Information as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)and described in Section 15.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carter Validus Mission Critical REIT, Inc.)
Seller’s Representations and Warranties. Seller represents hereby makes the following representations, warranties, and warrants to Purchaser that:
acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Close of Escrow and shall survive the Close of Escrow for a period of one (i1) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formationyear.
(ii) Seller 10.1 Seller, and the person executing this Agreement on behalf of Seller, has the full right, power, power and authority to execute and deliver enter into this Agreement and to consummate convey title to the purchase Property to Buyer, and sale transactions provided for herein without obtaining any further consents or approvals from, or to take all actions required of it by the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller terms of this Agreement, and .
10.2 All the consummation documents executed by Seller which are to be delivered to Buyer at or before the Close of the transactions contemplated herebyEscrow will be duly authorized, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaserwill be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principals relating to or limiting the rights of contracting parties generally) and will not violate any provisions of any agreement to which Seller is a party or to which it is subject.
10.3 Seller is the lawful fee simple owner of the Property and all improvements developed thereupon, which, as of the Close of Escrow, will constitute be free and clear of all liens, security agreements, encumbrances, claims, demands, and charges of every kind and nature whatsoever, except as may be expressly permitted in this Agreement. The Property may be subject to certain recorded easements, conditions, covenants and restrictions, which are subject to Buyer’s review and approval.
10.4 Prior to the Close of Escrow or the termination of this Agreement by Buyer in accordance with the terms herein, Seller shall not execute any option, lease, escrow instructions, sale contracts, or other agreements or instruments giving any other party any right of ownership, possession, or use of the Property or any part thereof, or further encumber the Property or any part thereof.
10.5 This Agreement has been duly executed by Seller and constitutes the valid and binding agreement of Seller, Seller enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesterms.
(iii) There are no actions10.6 Until the Close of Escrow, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than shall maintain the Property and any Excluded Property Agreements.
(x) Trueimprovements and landscaping thereon, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (same general condition as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, exists as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofEffective Date. Seller has delivered or made available to Purchaser true, correct shall deliver the Property reasonably clean and complete copies free of all Regulatory Agreements personal belongings and all amendments thereto or modifications thereofdebris.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser Buyer as of the date hereof as and of the Closing Date, that:
: Seller has good and marketable title to the Assets on the date hereof and shall have good and marketable title as of the Closing Date, in each case free and clear of all claims, liens, and encumbrances. Notwithstanding anything to the contrary contained in this Contract or otherwise, Seller shall be obligated to remove (iregardless of whether Buyer has objected thereto) Seller all liens, encumbrances, lienholders, lenders or lessors on Assets, as well as any UCC filings, tax liens, judgments, and each Applicable Entity is duly organizedother monetary liens or encumbrances, validly existing it being the intent of the parties that the Assets shall be conveyed to Buyer free and clear of all monetary liens and encumbrances whatsoever, and in good standing under no event shall any such monetary liens or encumbrance be deemed a permitted exception to title or otherwise the laws responsibility of its jurisdiction Buyer hereunder. No party has any purchase option or right of formation.
(ii) first refusal with respect to the Assets; The intellectual property used in connection with the Business does not infringe upon any design, patents, copyright, trade secrets, or other intellectual property rights of any third party, and Seller has full rightnot received and is not aware of any demand, powerclaim, cease and authority desist letter or other similar claim or threat, whether to execute and deliver this Agreement and Seller or to consummate Seller’s predecessor in title or to others, alleging actual or potential infringement by the purchase and sale transactions provided for herein without obtaining any further consents Intellectual Property; There is no litigation or approvals fromclaim pending, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially against the Business or the Assets. Except as otherwise expressly provided herein, Seller makes no representation or warranty, whether express or implied, and adversely affect Buyer is purchasing the ownershipBusiness on an as-is basis. BUSINESS TRADE NAME: Seller hereby grants Buyer, operation, or maintenance effective as of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsClosing, all bills right, title and other payments due interest in and payable before the Closing Date with respect to the ownership, operation, name and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leasesany variations thereof, and all Tenants thereunder, as of the date of the rent roll, logos and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent rolltrade dress associated therewith. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor hereby waives any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications rights thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amendeddirectly or indirectly, modifiedafter the Closing, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear make use of any encumbrances, except for any encumbrances imposed under such name or logo. Within five (5) days following the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of at Seller’s sole cost and expense, Seller shall make all filings necessary to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreementchange its fictitious, “Seller’s knowledgedba” shall mean or trade name to a name unrelated to the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerBusiness.
Appears in 1 contract
Samples: Business Purchase and Sale Agreement
Seller’s Representations and Warranties. In order to induce Purchaser to purchase the Premises, Seller hereby warrants, represents and warrants agrees that the following are true as of the date hereof and will be true on the Closing Date:
(a) Annexed hereto as Exhibit "C" is a true, complete and correct schedule of all Leases, which Leases are valid and bona fide and are now in full force and effect. No defaults exist thereunder and no condition exists which, with the passage of time or the giving of notice or both, will become a default; the Leases constitute all of the leases, tenancies or occupancies affecting the Premises on the date hereof; all Tenants have commenced occupancy; there are no agreements which confer upon any Tenant or any other person or entity any rights with respect to the Premises, nor is any Tenant entitled now or in the future to any concession, rebate, offset, allowance or free rent for any period, nor has any such claim been asserted by any Tenant.
(b) Annexed hereto as Exhibit "F" (the "Rent Roll") is a true, complete and correct listing of all Leases, which sets forth: (i) the total number of Tenants at the Premises; (ii) the name of each Tenant; (iii) fixed rent actually being collected; (iv) expiration date or status of the Leases (including all rights or options to renew); (v) Security Deposits; (vi) arrangements under which any Tenant is occupying space on the date hereof or will in the future, occupy such space; (vii) any notices given by any Tenant of an intention to vacate space in the future; and (viii) the base year(s) and base year amounts for all items of rent or additional rent billed to each Tenant on that basis. Seller has performed all of the obligations and observed all of the covenants required of the landlord under the terms of the Leases.
(c) All work, alterations, improvements or installations required to be made for or on behalf of all Tenants under the Leases have in all respects been carried out, performed and complied with, and there is no agreement with any Tenant for the performance of any work to be done in the future. No work has been performed at the Premises which would require an amendment to the certificate of occupancy, and any and all work performed at the Premises to the date hereof and to the Closing Date has been and will be in accordance with the rules, laws and regulations of all applicable authorities. All bills and claims for labor performed and materials furnished to or for the benefit of the Premises will be paid in full on the Closing Date.
(d) There are no service contracts, union contracts, employment agreements or other agreements affecting the Premises or the operation thereof, except the Service Contracts. True, accurate and complete copies of the Service Contracts have been initialed by the parties. All of the Service Contracts are and will on the Closing Date be unmodified and in full force and effect without any default or claim of default by any of the parties thereto. All sums presently due and payable by Seller under the Service Contracts have been fully paid and all sums which become due and payable between the date hereof and the Closing Date shall be fully paid on the Closing Date.
(e) There are no actions, suits, labor disputes, litigation or proceedings currently pending or, to the knowledge of Seller, threatened against or related to Seller or to all or any part of the Premises or the operation thereof, nor does Seller know of any basis for any such action.
(f) There are no outstanding requirements or recommendations by (i) the insurance company(s) which issued the insurance policies insuring the Premises; (ii) any board of fire underwriters or other body exercising similar functions, or (iii) the holder of any mortgage, which require or recommend any repairs or work to be done on the Premises.
(g) No Tenants are in arrears for the payment of rent for any month preceding the month of the date of this Agreement, nor has Seller received notice of an intention to vacate from any Tenant, except as noted on the Rent Roll.
(h) The Seller has received no written notice and has no knowledge of (i) any pending or contemplated annexation or condemnation proceedings, or private purchase in lieu thereof, affecting or which may affect the Premises, or any part thereof, (ii) any proposed or pending proceeding to change or redefine the zoning classification of all or any part of the Premises, (iii) any proposed or pending special assessments affecting the Premises or any portion thereof, (iv) any penalties or interest due with respect to real estate taxes assessed against the Premises and (v) any proposed change(s) in any road or grades with respect to the roads providing a means of ingress and egress to the Premises. Seller agrees to furnish Purchaser that:with a copy of any such notice received within two (2) days after receipt.
(i) Seller has provided Purchaser with all reports in Seller's possession or under its control related to the physical condition of the Premises and each Applicable Entity all Books and Records necessary for Purchaser to conduct its due diligence and Tests and Studies.
(j) Seller has no knowledge of any notices, suits, or judgments relating to any violations (including environmental) of any laws, ordinances or regulations affecting the Premises, or any violations or conditions that may give rise thereto and has no reason to believe that any Governmental Authorities contemplates the issuance thereof.
(k) There are no employees working at or in connection with the Premises. There is currently no union agreement affecting the Premises and none will be in effect on the Closing Date.
(l) Annexed hereto as Exhibit "I" is a schedule of all leasing commission obligations affecting the Premises. The respective obligations of Seller and Purchaser with respect to said commissions are set forth in Section 14.
(m) Seller (A) is a duly organized, organized and validly existing and in good standing corporation under the laws of its jurisdiction the State of formation.
New Jersey, and is duly authorized to transact business in the State of New Jersey; (iiB) Seller has full right, power, all requisite power and authority to execute and deliver this Agreement and all other documents and instruments to consummate the purchase be executed and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance delivered by Seller of this Agreementit hereunder, and to perform its obligations hereunder and under such other documents and instruments in order to sell the consummation by Seller Premises in accordance with the terms and conditions hereof and all necessary actions of the transactions stockholders and board of directors of Seller to confer such power and authority upon the persons executing this Agreement and all documents which are contemplated hereby, by this Agreement on its behalf have been duly and validly authorized by all necessary action on the part of Seller. taken.
(n) This Agreement, when duly executed and delivered by Seller and Purchaserdelivered, will constitute be the legal, valid and binding agreement obligation of Seller, enforceable against Seller in accordance with the terms of this Agreement. Seller's performance of its terms subject duties and obligations under this Agreement and the transfer documents contemplated hereby will not conflict with, or result in a breach of or default under, any provision of any of Seller's organizational documents, any agreements, instruments, decrees, judgments, injunctions, orders, writs, laws, rules or regulations, or any determination or award of any court or arbitrator, to principles of bankruptcy and general equitable principleswhich Seller is a party or by which its assets are or may be bound.
(iiio) There are no actionsNo petition in bankruptcy (voluntary or otherwise), suits, claims, assessmentsassignment for the benefit of creditors, or proceedings petition seeking reorganization or arrangement or other action under Federal or State bankruptcy laws is pending or, to Seller’s knowledge, or threatened that would reasonably be expected to materially and adversely affect the ownership, operationagainst, or maintenance of the Applicable Entities or the Property or contemplated by Seller’s ability to perform hereunder.
(ivp) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsNo person, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulationfirm, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any rightrights in, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in all or any Applicable Entity. None part of the Applicable Entities have, or have ever had, any subsidiariesPremises.
(xiiq) The Personal Property is now owned and will on the Closing Date be owned by Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrancesconditional bills of sale, except chattel mortgages, security agreements or financing statements or other security interests of any kind. All representations and warranties provided by Seller in this Agreement shall survive the Closing Date for any encumbrances imposed under a period of one (1) year and shall not be merged in the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner delivery of the Equity InterestsDeed. Seller agrees to indemnify and hold Purchaser harmless against all claims, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoeverlosses, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except deficiencies and damages as well as reasonable expenses (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”including attorney's fees), and all Regulatory Agencies thereunderinterest and penalties related thereto, as asserted by any third party against or incurred by Purchaser, by reason of or resulting from any breach, inaccuracy, incompleteness or nonfulfillment of the date thereofcovenants, representations and otherwise accurately reflects, in all material respects, the subject matter thereof as warranties of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used contained in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatBuyer as follows, which representations and warranties shall be true and correct in all material respects as of the Effective Date and as of the Closing Date, and which shall survive the Closing for a period of seven (7) years thereafter that except as set forth on Exhibit F as attached hereto and as may be amended from time to time by Seller through the Closing Date:
(ia) To Seller's knowledge, no notice of any material violation of any zoning, building or other law, ordinance, regulation, requirement or directive of any type against the Property or any portion thereof has been received by Seller from a governmental body.
(b) To Seller's knowledge, no notice of a pending condemnation, expropriation, eminent domain or similar proceeding affecting all or any portion of the Property has been received by Seller.
(c) Seller will not enter into any employment contracts or deferred compensation agreements with employees of Seller, if any, at the Property, which will be binding upon Buyer after the Closing, without the prior consent of Buyer.
(d) All of the Property to be transferred on the Closing Date shall be in the same condition as on the Effective Date of this Agreement, except for reasonable wear and each Applicable Entity tear.
(e) Seller is a limited liability company duly organizedconstituted, validly existing existing, and in good standing under the laws of its jurisdiction the State of formationIllinois.
(iif) Seller has full rightTo Seller's knowledge, power, and authority to execute and deliver this Agreement and to consummate Seller's income tax returns have not been audited by the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, Internal Revenue Service or the taking State of any other actions with respect toIllinois.
(g) As of the Closing Date, any third partiesSeller will hold good and marketable title to all of the Property, subject to no mortgage, pledge, lien, encumbrance, security interest or charge, that will not be discharged prior to Closing, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesPermitted Exceptions.
(iiih) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially The Property is and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior adequately insured against fire and casualty to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent rollvalid policies therefor are and will be outstanding and duly enforced, and otherwise accurately reflects, in all material respects, the subject matter thereof as of premiums to become due thereon to the date of the rent rollClosing Date will be paid when due by Seller. Seller has delivered or made available not received any notice of any cancellation of policies pertaining to Purchaser truethe foregoing. Seller will indemnify and hold harmless Buyer, correct its successors and complete copies of all Leases assigns, from and against any and all amendments thereto loss, liability, damage, cost or modifications thereof.
(vi) Schedule 6(a)(vi) is expense, including, without limitation, reasonable attorneys' fees, suffered or incurred by Buyer due to a true, correct and complete listing breach of all License Agreements, and all Licensees thereunder, as any of the date thereof, foregoing representations and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofwarranties. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation No claim for a breach of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap representation or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect warranty of Seller shall be actionable after Closing if the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, breach in question was actually known to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned Buyer prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents hereby --------------------------------------- acknowledges and warrants hereby makes each of the following representations and warranties with respect to Purchaser thatthe SWC Common Stock:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing acknowledges that the issuance of the SWC Common Stock has not been nor will be registered under the laws Securities Act, or any state securities laws, and that the SWC Common Stock is being issued pursuant to exemptions from registration under the Securities Act for issuance of its jurisdiction of formation.securities not involving a public offering;
(ii) Seller is acquiring the SWC Common Stock solely for its own account for investment and not with a view to resale or distribution and has full right, power, and authority no present intention of making a Disposition of the SWC Common Stock to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining person or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.entity;
(iii) There are no actions, suits, claims, assessments, Seller was not formed for the specific purpose of acquiring or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect holding the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.SWC Common Stock;
(iv) Except for Permitted Encumbrances Seller is a sophisticated investor and has such knowledge and experience in financial, tax, business matters, securities and investments including, without limitation, experience in investments by actual participation, so as may be reflected on to evaluate the Closing Statement merits and risks of investing in and holding the SWC Common Stock and to make an informed investment decision with respect thereto, and has made such investigation into SWC as is necessary to Proration Items, all bills and other payments due and payable before make an informed investment decision;
(v) Seller qualifies as an "accredited investor," as that term is defined under Rule 501 of Regulation D promulgated under the Closing Date Securities Act;
(vi) Seller has not received any advertisement or general solicitation with respect to the ownership, operation, and maintenance issuance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.SWC Common Stock;
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller Neither the Securities and Exchange Commission nor any Applicable Entity state securities commission has received any written notice of violation (approved the SWC Common Stock or to passed upon or endorsed the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification merits of the zoning classification of the Property.SWC Common Stock;
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations must bear the economic risk of the Office investment indefinitely because the SWC Common Stock has not been registered under applicable securities laws and therefore the SWC Common Stock may not be sold, hypothecated or otherwise disposed of Foreign Asset Control (“OFAC”) of unless subsequently registered under the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals Securities Act and Blocked Persons List) applicable state securities laws or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and an exemption from registration is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.available;
(ix) No Applicable Entity has Seller will not make a Disposition of any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies shares of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed SWC Common Stock without registration under applicable securities laws or the Organizational Documents.a valid exemption therefrom;
(xivx) Except as The legend set forth in Section 10(a) of this Agreement shall be placed on the Organizational Documents or shares of SWC Common Stock and notations thereof will be made in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, SWC's books and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.transfer records; and
(xvxi) The Applicable Entities have no liabilities, obligations or commitments information contained herein is accurate and may be relied upon by SWC in determining the availability of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected an exemption from registration under federal and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)state securities laws.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. 4.1 Seller represents does represent and warrants warrant to Purchaser that:
(i) Buyer that Seller is the lawful owner of the Portables and each Applicable Entity is duly organized, validly existing that the Portables are free and in good standing under the laws of its jurisdiction of formationclear from all liens and encumbrances.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions 4.2 Except as otherwise provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and Xxxxx agrees to accept the consummation by Seller of the transactions contemplated herebyPortables "As Is", have been duly and validly authorized by all necessary action without any agreements, representations, understandings or obligations on the part of SellerSeller to perform any alterations, repairs or improvements. This AgreementSELLER MAKES NO WARRANTY OR REPRESENTATION, when executed EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR THE USE OF ANY OF THE PROPERTY, OR AS TO ITS , TITLE THERETO, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROPERTY. Buyer acknowledges that Seller is not a manufacturer or dealer of Portables and delivered by that Seller and Purchaser, will constitute takes no part in or responsibility for the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance installation of the Applicable Entities prope1ty, and that Seller has made no representation or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances warranty and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date assumes no obligation with respect to the ownershipmerchantability, operationcondition, and maintenance quality or fitness of the Applicable Entities Portables.
4.3 Buyer agrees to accept the Portables "Where ls" without any agreements, representations, understandings or obligations on the part of Seller regarding the means or manner for removal and transportation of the Property have been paid Portables from Seller's premises. Buyer assumes all risk of loss or will be paid prior damage arising out of or relating to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct removal and complete listing of all Leases, and all Tenants thereunder, as transportation of the date Portables. The Portables shall be removed from Seller's premises June 24th thru July 12th 2024. Buyer assumes all risk of damage to or destruction of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect andPortables during that period, except to the extent approved caused by Purchaser, shall not be amended, modified, supplemented Seller's active negligence or assigned prior willful misconduct. Buyer waives and releases Seller from all claims for injury to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests person or rights damage to acquire equity interests in any Applicable Entity. None property arising out of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition removal and transportation of the Equity InterestsPortables, mid Buyer shall indemnify and hold Seller harmless from the claims of others arising out of or relating to the removal and transportation of the Portables, except to the extent that the losses are caused by Seller's active negligence or willful misconduct. Buyer shall take care to avoid damaging or destroying Seller's property, and (B) there are no preemptive shall promptly repair or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, replace any of Seller's property damaged or destroyed by Buyer while on Seller's premises for the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any removal and transportation of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingPortables.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Agreement for Sale of Structure
Seller’s Representations and Warranties. In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(ia) Seller and each Applicable Entity is duly organized, validly existing a limited liability company organized and in good standing under the laws of its jurisdiction the State of formation.
(ii) Delaware. Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase transactions contemplated hereby, and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesexcept as otherwise expressly set forth herein.
(iiib) There are is no actions, suits, claims, assessments, agreement to which Seller is a party or proceedings pending or, to Seller’s knowledgeActual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) To Seller’s Actual Knowledge, threatened except as disclosed on Schedule 2 attached hereto, Seller has received no written notice from any governmental agency that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(d) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not received written notice from any governmental agency of any condemnation proceedings relating to the Property.
(e) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed and is continuing against Seller that arises out of the ownership of the Property and would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities Property or the Property use thereof, or Seller’s ability to perform hereunder.
(ivf) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsTo Seller’s Actual Knowledge, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(vx) The rent roll attached hereto as Schedule 6(a)(v) Exhibit C-2 is a true, correct correct, and complete listing list of all Leases, and all Tenants thereunder, the Leases as of the date of the rent rollEffective Date, and otherwise accurately reflects(y) Seller has delivered to Buyer, or made available to Buyer for review, true and complete, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereofset forth on Exhibit C-2. To Seller’s Actual Knowledge, except for the notices referenced in Schedule 2, within the last six months prior to the Effective Date, Seller has not given any written notice to a tenant under any Lease of a default which remains uncured.
(vig) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writingTo Seller’s Actual Knowledge, neither Seller nor any Applicable Entity has received any written notice of violation (its respective affiliates or to the extent receivedconstituents, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders brokers or other equity owners, nor agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (Ba) conducting any of their respective employees, officers, directors, representatives business or agents is, nor will they become, a engaging in any transaction or dealing with any person or entity with whom appearing on the U.S. persons or entities are restricted from doing business under regulations of the Treasury Department’s Office of Foreign Asset Assets Control (“OFAC”) list of restrictions and prohibited persons (“Prohibited Person”) (which lists can be accessed at the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statutefollowing web address: xxxx://xxx.xxxxxxx.xxx/offices/enforcement/ofac/), executive order (including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, Executive Order relating to “Blocking Property and Prohibiting Transactions with With Persons Who Commit, Threaten to Commit, or Support Terrorism), ”; or other governmental action and is not and will not (c) engaging in or conspiring to engage in any dealings transaction that evades or transactions avoids, or be otherwise associated with such persons has the purpose of evading or entitiesavoiding, or attempting to violate, any of the prohibitions set forth in any U.S. anti-money laundering law.
(ixh) No Applicable Entity has any rightTo Seller’s Actual Knowledge, title or interest in any property the Contracts listed on Exhibit C-1 attached hereto are all of the contracts affecting the Property as of the Effective Date other than any contracts disclosed in the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of Information or agreements disclosed in the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications theretoTitle Commitment, and except for the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entityforegoing, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, there shall not be amendedany other Contracts or contracts or agreements of any type pertaining to the Property, modified, supplemented the obligation or assigned prior to liability for which Buyer or the Property could be liable after the Closing.
(xii) Other than the Equity InterestsTo Seller’s Actual Knowledge, neither Seller nor any other party has equity interests provided or rights made available to acquire equity interests Buyer all Property Information in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiariesSeller's possession.
(xiij) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity InterestsTo Seller’s Actual Knowledge, free and clear of any encumbrancesall Operating Costs reconciliations for calendar year 2020 have been made and, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) 2 attached hereto, all amounts which will not were reasonably determined by Seller to be paid off on or prior owed to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations tenants in connection with such reconciliations have been paid or credited; provided, however, Seller makes no representation or warranty as to the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)accuracy or completeness of any such Operating Costs reconciliations for calendar year 2020.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Seller’s Representations and Warranties. As a material inducement to NYSERDA to enter into this Agreement, Seller represents makes the following representations and warrants to Purchaser thatwarranties, all of which shall survive the execution and delivery of this Agreement:
(ia) that it has requested to terminate the Tier-1 Agreement as provided herein due to its conclusion that, as of the date hereof and based on its current projections of construction and operating costs and available financing, the Bid Facility is not economically feasible under the pricing agreed to and set forth in such Tier-1 Agreement;
(b) that it has not delivered a notice to its general contractor (or in the event that there is no general contractor to all material internal construction unit(s) and/or third party contractor(s)) to proceed with the construction of the Bid Facility, at a minimum of eighty percent (80%) of the Bid Capacity, other than a limited notice to proceed only with site preparation and/or site civil work (“Notice to Proceed”);
(c) that Seller and each Applicable Entity has determined in good faith that the Commercial Operation Milestone Date under the Tier-1 Agreement will not be timely achieved in accordance with the terms of such Tier-1 Agreement;
(d) that Seller is a limited liability company duly organized, validly existing and in good standing under the laws of its the jurisdiction of formation.its organization;
(iie) that Seller has full right, power, all necessary power and authority to execute and deliver this Agreement and all other agreements contemplated herein and hereby and to consummate the purchase transactions contemplated hereby and sale thereby. The execution and delivery by Seller of this Agreement and all other agreements contemplated herein and hereby and the consummation of the transactions provided for contemplated hereby and thereby have been or, if not yet executed and delivered, will be when executed and delivered, duly authorized by Seller, and no other actions or proceedings on the part of Seller are necessary to authorize this Agreement or any other agreement contemplated herein without obtaining any further consents or approvals from, and hereby or the taking consummation of any other actions the transactions contemplated hereby and thereby;
(f) that this Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with respect to, any third parties, other than obtaining or delivering the terms herein;
(as applicableg) that the Regulatory Approvals. The execution, delivery and performance by Seller of Seller, the entry into this AgreementAgreement by Seller, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on this Agreement will not violate (i) Applicable Law or any provision of the part limited liability company agreement or other governing documents of Seller. This Agreement; (ii) violate, when executed and delivered by Seller and Purchaserconflict with, will result in a breach of or constitute (alone or with notice or lapse of time or both) a default or an event of default under any indenture, agreement (including the valid and binding limited liability company agreement of Seller), enforceable against mortgage, deed of trust, note, lease, contract or other instrument to which Seller in accordance with is a party or by which it or any of its terms subject to principles of bankruptcy and general equitable principles.
property is bound; or (iii) There result in the creation or imposition of any lien upon any property or assets of Seller;
(h) there are no undisclosed material legal actions, suits, claims, assessmentsor encumbrances, or proceedings liabilities pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and may adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform performance of this Agreement or NYSERDA's rights hereunder.;
(ivi) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, there are no claims against Seller or NYSERDA relating to or arising out of the Tier-1 Agreement that are not covered by the release contained in Section 7;
(Aj) Seller has neither assigned nor transferred any of their respective affiliatesclaims released herein, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a and no person or entity with whom U.S. persons has subrogated to or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) has any interest or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage rights in any dealings or transactions or be otherwise associated with such persons or entitiesclaims.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Termination Agreement
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:that as of the date of this Agreement (unless otherwise stated below):
(i) Seller is a duly formed and each Applicable Entity is duly organized, validly existing and in good standing limited liability company organized under the laws of its jurisdiction Delaware. Seller is authorized to own and convey title to land in the State of formationSouth Carolina.
(ii) Subject to obtaining the consent required in accordance with Section 10.G. hereof, Seller has the full legal right, power, power and authority to execute and deliver this Agreement and all documents now or hereafter to be executed by it pursuant hereto (collectively, the "Seller's Documents"), to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of transaction contemplated in this Agreement, and to perform its obligations under this Agreement and the consummation by Seller's Documents. The person signing this Agreement on behalf of Seller of the transactions contemplated hereby, have been duly and validly is authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesdo so.
(iii) There are no actions, suits, claims, assessmentsSeller has not been served with any litigation which is still pending with respect to the Property that would adversely affect Seller's ability to perform its obligations under this Agreement, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected affect title to the Property after Closing or the enforcement of any of the Leases, or that would materially and adversely affect the ownership, operation, financial condition or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification operation of the Property.
(viiiiv) Neither Seller nor any Applicable EntityPurchaser has been given access to, noror possession of, complete and accurate copies of (a) the Ground Lease, the Option Agreement, the Anchor Pad Purchase Agreement, and the Existing Loan Documents existing as of the date of this Agreement, and (b) to Seller’s knowledge's Knowledge, the Leases, the Permits and Licenses, the Guaranties and Warranties, the Service Contracts and the Plans and Reports (Aand all amendments thereto) any existing of their respective affiliatesas December 31, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities1996.
(ix1) No Applicable Entity has any rightthe information contained in the schedule of leases attached to and made a part of this Agreement as Exhibit D (the "Lease Schedule") is complete and accurate as of December 31, title 1996; and (2) there were no leases, or interest in any property to Seller's Knowledge, tenancies or other rights to occupy the Property as of December 31, 1996 other than those set forth in the Property and any Excluded Property AgreementsLease Schedule.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xivb) Except as set forth in the Organizational Documents Lease Schedule or as previously disclosed to or learned by Purchaser as manager under the Management Agreement:
(1) No action or proceeding has been instituted against Seller (in which Seller has received process) by any tenant of the Property which is presently pending in any court, except with respect to claims involving personal injury or property damage, other than those referred to in Exhibit V attached to and made a part of this Agreement and, with the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on exception of claims or prior offsets referred to Closingin Exhibit W, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive outstanding written claims for rent offsets or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of otherwise by any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingtenants against Seller.
(xv2) The Applicable Entities Seller holds no security or other tenant deposits.
(3) All security and other tenant deposits have been held and, where applicable, returned in compliance with all applicable rules, ordinances and statutes.
(4) There are no liabilitiesleasing commissions outstanding which are payable out of rents.
(5) To Seller's Knowledge, obligations or commitments each Lease is in full force and effect.
(6) No default exists on the part of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmaturedSeller, or otherwiseto Seller's Knowledge, except any tenant under any Lease.
(A7) No tenant has any defense, offset or counterclaim against or with respect to any existing loans evidenced, secured or governed rent and other sums payable by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (it under its Lease except as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)in its Lease.
(xvi) To 8) There are no concessions, free rent periods, tenant improvement obligations or improvement allowances to any tenant not specified in the applicable Lease. If any Lease contains provisions which are inconsistent with the foregoing representations and warranties, such representations and warranties shall be deemed modified to the extent there are any proxies necessary to vote or other similar arrangements entered into by Seller, eliminate such proxies inconsistency and to vote or other similar arrangements will not affect conform such representations and warranties to the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation provisions of such person or any other officer, director, partner and/or member of SellerLease.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if prior to the Closing Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If prior to the Closing Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, when executed and delivered by upon which termination the Exxxxxx Money (plus interest earned thereon) shall be returned to Buyer, Seller and Purchaser, will constitute shall pay the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject Expense Reimbursement to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operationBuyer, and maintenance the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of the Applicable Entities and the Property have been paid or will be paid this Agreement. If prior to the Closing Date.
Buyer has Actual Knowledge (vwhether from Seller or its own investigation) The rent roll attached hereto as Schedule 6(a)(v) is that a trueSeller R&W Change has occurred, correct such change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and complete listing of all Leaseswarranty to become inaccurate in any material respect (in which case such Seller R&W Change shall be deemed to be a Seller R&W Breach), and all Tenants thereunderSeller is unable within ten (10) days after notice from Buyer of such R&W Change to eliminate such inaccuracy, Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, upon which termination the Exxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If prior to the Closing Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Seller shall indemnify, defend and hold harmless Buyer of and from any and all losses, costs, liabilities, damages and expenses, including attorneys’ fees and costs, incurred by Buyer on account of the date breach by Seller of any one or more of the rent rollrepresentations and warranties of Seller made herein, and otherwise accurately reflects, in all material respects, provided that (i) the subject matter breach thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior first discovered subsequent to Closing, to Seller’s knowledge (Aii) the Equity Interests are not subject claim thereon is asserted by Buyer to Seller in writing on or before the date one hundred eighty (180) days after Closing, (iii) the amount of any arrangement restricting or otherwise relating to such loss, cost, liability, damage and expense suffered by Purchaser shall exceed the voting, dividend rights or disposition of the Equity InterestsMaterial Damage Floor, and (Biv) there are in no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments event shall the amount of any character under such loss, cost, liability, damage and expense for which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any shall be liable under this indemnification exceed the sum of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, Five Hundred Thousand and no securities or obligations evidencing such rights are authorized, issued or outstanding.
No/100ths Dollars (xv$500,000.00) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if, prior to the Closing, Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, when executed upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and delivered if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer, and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Change has occurred, such Seller R&W Change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and Purchaserwarranty to become inaccurate in any material respect (in which case such Seller R&W Change shall be deemed to be a Seller R&W Breach), will constitute and Seller is unable within ten (10) days after notice from Buyer of Purchase and Sale Agreement such R&W Change to eliminate such inaccuracy, Buyer shall have the valid right, as its sole and binding agreement exclusive remedy, to terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of Sellerthis Agreement. If, enforceable against prior to the Closing, Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Buyer shall be entitled to seek and recover from Seller its actual damages incurred on account of the breach by Seller of any one or more of the representations and warranties of Seller made herein, only if (i) the breach thereof is first discovered subsequent to Closing, (ii) the claim thereon is asserted by Buyer to Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
writing on or before the date one hundred eighty (180) days after Closing, (iii) There are no actionsthe amount of any such loss, suitscost, claimsliability, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially damage and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
expense suffered by Buyer (iv) Except when aggregated with all other amounts for Permitted Encumbrances and as which Seller may be reflected on liable in connection with breaches of its representations, warranties or covenants under this Agreement) shall exceed the Closing Statement Material Damage Floor; provided, however, in no event shall the amount of any such loss, cost, liability, damage and expense for which Seller shall be liable with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
such breach (v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, when aggregated with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except damages for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations liable in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote breaches of its representations, warranties or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements covenants under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean ) exceed the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerMaterial Damage Ceiling.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if prior to the Closing Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, when executed and delivered by upon which termination the Exxxxxx Money (plus interest earned thereon) shall be returned to Buyer, Seller and Purchaser, will constitute shall pay the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject Expense Reimbursement to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operationBuyer, and maintenance the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of the Applicable Entities and the Property have been paid or will be paid this Agreement. If prior to the Closing Date.
Buyer has Actual Knowledge (vwhether from Seller or its own investigation) The rent roll attached hereto as Schedule 6(a)(v) is that a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller R&W Change has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent receivedoccurred, such violation has been cured) from any insurance companieschange was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, governmental agencies or authorities or from any other parties related intentional act on the part of Seller which caused such representation and warranty to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage become inaccurate in any dealings or transactions or material respect (in which case such Seller R&W Change shall be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority deemed to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which a Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”R&W Breach), and all Regulatory Agencies thereunderSeller is unable within ten (10) days after notice from Buyer of such R&W Change to eliminate such inaccuracy, Buyer shall have the right, as of the date thereofits sole and exclusive remedy, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in terminate this Agreement, “Sellerupon which termination the Exxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If prior to the Closing Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerActual Knowledge.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. In consideration of Xxxxx’s entering into this Agreement and as an inducement to Buyer to purchase the Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(ia) Seller and each Applicable Entity is duly organized, validly existing a limited liability company organized and in good standing under the laws of its jurisdiction the State of formation.
(ii) Delaware. Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase transactions contemplated hereby, and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesexcept as otherwise expressly set forth herein.
(iiib) There are is no actions, suits, claims, assessments, agreement to which Seller is a party or proceedings pending or, to Seller’s knowledgeActual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code and regulations promulgated thereunder, threatened which Seller shall so certify at Closing.
(d) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has received no written notice from any governmental agency in the last 24 months that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(e) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to the Property.
(f) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed against Seller that arises out of the ownership of the Property and would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities Property or the Property use thereof, or Seller’s ability to perform hereunder.
(ivg) Except To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not received written notice from any contractor in the past ninety (90) days disclosing unpaid bills for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Itemsany services, all bills and other payments due and payable before the Closing Date with respect labor or materials provided to the ownership, operation, and maintenance of Property that was contracted for directly by any tenant at the Applicable Entities and the Property have been paid or will be paid prior to the Closing DateProperty.
(vh) The rent roll attached hereto as Schedule 6(a)(vSeller is not and is not acting on behalf of (i) is an “employee benefit plan” within the meaning of Section 3(3) of ERISA, (ii) a true, correct and complete listing “plan” within the meaning of all Leases, and all Tenants thereunderSection 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or (iii) an entity deemed to hold “plan assets” within the meaning of the date 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of the rent rollERISA, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered any such employee benefit plan or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereofplans.
(vii) Schedule 6(a)(vi) is a trueSeller has no employees, correct and complete listing either at-will or in the context of all License Agreementsan employment contract with Seller, and all Licensees thereunder, as any employees associated with the Property are employees of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereofSeller’s property manager.
(viij) Except as otherwise disclosed to Purchaser Seller has not either filed or been the subject of any filing of a petition under the Federal Bankruptcy Law or any federal or state insolvency laws or laws for composition of indebtedness or for the reorganization of debtors. To Seller’s Actual Knowledge, Seller has not received written notice of the existence of any attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in writingbankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Seller.
(k) To Seller’s Actual Knowledge, neither Seller nor any Applicable Entity has received any written notice of violation (its respective affiliates or to the extent receivedconstituents, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders brokers or other equity owners, nor agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (Ba) conducting any of their respective employees, officers, directors, representatives business or agents is, nor will they become, a engaging in any transaction or dealing with any person or entity with whom appearing on the U.S. persons or entities are restricted from doing business under regulations of the Treasury Department’s Office of Foreign Asset Assets Control (“OFAC”) list of restrictions and prohibited persons (“Prohibited Person”) (which lists can be accessed at the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statutefollowing web address: xxxx://xxx.xxxxxxx.xxx/offices/enforcement/ofac/), executive order (including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, Executive Order relating to “Blocking Property and Prohibiting Transactions with With Persons Who Commit, Threaten to Commit, or Support Terrorism), ”; or other governmental action and is not and will not (c) engaging in or conspiring to engage in any dealings transaction that evades or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities haveavoids, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner purpose of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws evading or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sellavoiding, or giving any individual or entity a right attempting to acquire, or in any way dispose ofviolate, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) prohibitions set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at ClosingU.S. anti-money laundering law.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Growth & Income REIT, Inc.)
Seller’s Representations and Warranties. Seller represents hereby makes the following representations and warrants warranties, each of which (a) is subject to Purchaser that:
(i) the disclosures made in the Seller and each Applicable Entity is duly organizedDisclosure Statement, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, powerattached hereto as Exhibit E, and authority to execute (b) shall be continuing and deliver this Agreement shall survive the Closing for a period of six (6) months after the Closing (the “Survival Period”). Any claim based on any of the following representations and to consummate warranties must be filed, if at all, before the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or end of the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this AgreementSurvival Period, and the consummation by obligations of Seller shall be extended until the resolution of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Sellerany such claim. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, Whenever a representation or proceedings pending or, warranty is being made to Seller’s knowledge, threatened such qualification indicates that would reasonably the warranty is being made to the current actual knowledge of Xxxxxxx X. Xxx Xxxxxx, Senior Vice President, Finance and Administration, and Chief Financial Officer of NetIQ Corporation, and of Xxxx X. Xxxxxxxxx, Facilities Manager of NetIQ Corporation, without any implied, imputed or constructive knowledge and without any independent investigation having been made or any implied duty to investigate. No claim for a breach of any representation or warranty of Seller shall be expected actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was disclosed to materially and adversely affect Buyer in the ownershipDisclosure Statement, operation, or maintenance of the Applicable Entities or disclosed to Buyer in the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsInformation, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser Buyer by Seller in writing, neither Seller nor disclosed to Buyer in any Applicable Entity has received Information obtained by Buyer or disclosed to Buyer in any written notice Physical Testing or Inspection of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests. In addition, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear no claim for breach of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
representation or warranty of Seller shall be made if: (xiiia) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of this Agreement, Buyer had actual knowledge of the last delivered books, records inaccuracy of such representation or warranty; or (b) during the period after execution of this Agreement and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii1) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as Buyer obtained actual knowledge of the date thereofinaccuracy of such representation or warranty, (2) such inaccuracy, considered together with all other inaccuracies in Seller’s representations and otherwise accurately reflectswarranties of which Buyer had knowledge, in all material respects, would have caused the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledgeRepresentations” condition set forth in Section 6.2.2 above not to be satisfied, and (3) Buyer nonetheless elected to proceed with the Closing. Seller shall mean have no liability to Buyer for a breach of any representation or warranty unless written notice containing a description of the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation specific nature of such person breach shall have been given by Buyer to Seller prior to the expiration of the Survival Period and any action shall have been commenced by Buyer against Seller within six (6) months after Closing. Except as expressly set forth in this Agreement or any other officerclosing document, directorSeller has not made any warranty or representation, partner and/or member of Sellerexpress or implied, written or oral, concerning the Property.
Appears in 1 contract
Seller’s Representations and Warranties. Seller expressly represents and warrants to Purchaser that:
(ia) Seller and each Applicable Entity is duly organizedIt has all necessary legal capacity, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute enter into, execute, deliver, and deliver be bound by this Agreement and to consummate that the purchase execution and sale transactions provided for herein without obtaining any further consents or approvals from, or delivery of this Agreement and the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of Seller’s obligations under this Agreement, do not breach, and shall not result in a breach or violation of, any agreement to which Seller is a party or by which Seller is bound.
(b) Seller is the owner of all or has the right to (i) license Buyer the rights to use the ChromaDex Trademarks and NR Trade Secrets as specifically set forth in this Agreement, and (ii) grant Buyer the consummation rights to develop, manufacture, and sell the Approved Products using the patents listed in Exhibit F on the terms set forth in this Agreement; 18 Buyer’s and Seller’s Initials /s/ CK /s/ RF 197763379 v4
(c) All patents that are necessary for Buyer to use the NR Product to be supplied to Buyer in the development, manufacture, promotion, importation, marketing, distribution and sale of Approved Products are set forth in Exhibit F;
(d) Seller has not received any notice regarding the NR Product, including written notice, alleging any infringement by Seller of any intellectual property rights of a third party;
(e) To the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part best of Seller’s knowledge after due diligence and reasonable investigation, neither Seller, its Affiliates or any person employed thereby directly in the performance of Seller’s obligations under this Agreement has been debarred under Section 306(a) or (b) of the Federal Food, Drug and Cosmetic Act, and no debarred person will in the future by employed by Seller. This If, at any time after execution of this Agreement, when executed and delivered Seller becomes aware that Seller, any of its Affiliates or any person employed thereby is, or is in the process of being, debarred, Seller will so notify NHSc immediately.
(f) No NR Product at the time of shipment by Seller will be adulterated or misbranded within the meaning of the Federal Food, Drug and PurchaserCosmetic Act, as amended from time to time, or regulations promulgated thereunder, as such law or regulation is constituted and in effect at the time of any such shipment and no NR Product at the time of shipment will constitute be considered to be an article that may not, under the valid provisions of §§ 404, 505 or 512 of the Federal Food, Drug and binding agreement Cosmetic Act, be introduced into interstate commerce.
(g) All NR Product at the time furnished to Buyer and for the full period of the expected shelf life of such products will be in full compliance with the Specifications, the quality standards set forth in Exhibit G – Quality Standards (the “Quality Standards”) (Exhibit G is hereby incorporated herein in full by this reference), applicable Law and other requirements of this Agreement as long as Buyer’s errors, acts, omissions, or other conduct do not cause directly or indirectly the NR Product to become out of compliance with the Specifications, fail to meet the Quality Standards or violate applicable law and other requirements of this Agreement.
(h) Seller’s manufacturing, enforceable against Seller laboratory, and packaging facilities are and will at all times remain in material compliance with Good Manufacturing Practices, including but not limited to those set forth in 21 C.F.R. § 110 et seq., to the extent applicable to the manufacture and packaging of the NR Product, and all NR Product furnished to Buyer will be manufactured in accordance with its terms subject to principles of bankruptcy and general equitable principlesGood Manufacturing Practices.
(iiii) There are All NR Product at the time furnished to Buyer will not have been damaged during storage and handling and will otherwise be wholesome, fit for human consumption, and in first-class merchantable condition.
(j) Seller has and will maintain during the Term the necessary expertise, equipment, personnel, facilities, equipment and inventory of raw materials and finished product to supply the NR Products as agreed upon in all Purchase Orders accepted by Seller (unless Seller is unable to due to a Force Majeure Event).
(k) Except as otherwise advised by Seller in writing to Buyer on or prior to the Effective Date, there is no actionsdemand, suitsclaim, claimssuit, assessmentsaction, arbitration, and/or other proceeding, whether pending or proceedings pending orthreatened (and for which any basis exists), to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, jeopardizes (or maintenance of the Applicable Entities or the Property or could jeopardize) Seller’s ability to enter into this Agreement or perform any of its obligations hereunder.
(ivl) Except for Permitted Encumbrances It will at all times during the Term comply with all applicable laws, rules, orders, guidelines and as may be reflected on regulations, including the Closing Statement with respect to Proration Itemsones regarding the following matters: anticorruption, all bills immigration, antidiscrimination, tax, environment, data protection, food safety and other payments due and payable before the Closing Date with respect to the ownership, operationquality, and maintenance of the Applicable Entities export control, import, customs and the Property have been paid or will be paid prior to the Closing Dateeconomic sanctions.
(vm) The rent roll attached hereto as Schedule 6(a)(v) Have a quality management system in accordance with Nestlé’s reasonable requirements of which Seller is a true, correct advised of and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, agrees to in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser advance in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Supply Agreement (ChromaDex Corp.)
Seller’s Representations and Warranties. Seller represents and warrants Except as otherwise disclosed in the Disclosure Documents provided to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute Seller makes the valid following representations and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending orwarranties, to Seller’s knowledge, threatened that would reasonably be expected in addition to materially any other covenants and adversely affect representations made by Seller herein, all of which shall survive the ownership, operation, or maintenance Closing as provided in Section 7(e) below:
(i) Parties in Possession. There are no parties in possession of any portion of the Applicable Entities or applicable Parcel, except the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect tenants pursuant to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaserherein. The Organizational Documents Leases are in full force and effect andand have not been amended or modified in any respect, except and to Seller’s knowledge, Seller has not entered into any side agreements with the extent approved tenants. Except as disclosed in the Estoppel Certificates, the rents provided for under the terms of the Leases are or will be collected without offset or counterclaim, and no concessions or free rent shall be made or are due to any tenant. No written notice of default has been received from any tenant under the Leases or, if such written notice of default has been received, the condition complained of has been or will be cured by Purchaser, shall not be amended, modified, supplemented or assigned Seller prior to Closing.
(xiii) Other than Condemnation. There is no pending or, to the Equity Interestsknowledge of Seller, neither threatened condemnation or similar proceeding or special assessment affecting the applicable Parcel or any part thereof, nor to the knowledge of Seller nor is any other party has equity interests such proceeding or rights to acquire equity interests in assessment contemplated by any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiariesgovernmental authorities.
(xiiiii) Encumbrances. Seller is the record and beneficial sole owner of the Equity Interests and applicable Parcel. Seller has good and valid title not entered into any agreement to lease, sell, mortgage (except for existing mortgages of record, which Seller shall cause to be released of record as of the Equity Interests, free and clear Closing) or otherwise encumber or dispose of its interest in the applicable Parcel or any encumbrancespart thereof, except for any encumbrances imposed contracts expressly disclosed in this Agreement or the exhibits attached hereto, and Seller will not enter into any such agreements which will continue beyond the Closing Date without the prior written consent of Purchaser. Seller has no knowledge of threatened mechanics liens or notices of intent to file mechanics liens against all or any portion of the applicable Parcel for shell work performed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming Leases that Purchaser has is the requisite power and authority to be the lawful owner responsibility of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity InterestsSeller as landlord, and upon Purchaser’s payment of the Purchase Priceall contractors, Purchaser will acquire the Equity Interestssubcontractors, free materialmen, suppliers, laborers and clear of any encumbrances, except for encumbrances imposed under applicable securities laws other Parties who have performed services and/or provided material to or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which applicable Parcel have been incurred paid in full for shell work performed under the ordinary course of business consistent with past practice since Leases that is the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right responsibility of Seller to vote the Equity Interests will be transferred to Purchaser at Closingas landlord.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase Agreement (Aei Income & Growth Fund Xxii LTD Partnership)
Seller’s Representations and Warranties. A. Seller represents and warrants to Purchaser thatthe following:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under As of the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller date of this Agreement, and to the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part "Actual Knowledge of Seller. This " (as hereinafter defined), except as set forth on EXHIBIT H attached hereto, Seller has received no written notice from any governmental authority of any material violation of any, state or federal law, rule or regulation concerning the Property or any part thereof which has not been cured prior to the date of this Agreement; provided, when executed however, that Seller makes no representation or warranty with respect to (A) the information or matters disclosed in the items set forth in EXHIBIT P attached hereto, and delivered by Seller and Purchaser, will constitute (B) the valid and binding agreement of Seller, enforceable against Seller in accordance Property's compliance with its terms subject to principles of bankruptcy and general equitable principlesthe American with Disabilities Act.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected set forth on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll EXHIBIT I attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunderhereto, as of the date of the rent rollthis Agreement, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any no written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies pending litigation with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, which would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to after Closing.
(xiiv) Other than Prior to the Equity Interestsdate of this Agreement, neither Seller nor has calculated the reconciliation of Operating Expenses and Operating Expense Reimbursements for calendar year 1996 and has billed the tenants for any other party remaining amounts owed to Seller as a result of such reconciliation. In those instances where a refund is owed to a tenant, Seller has equity interests either refunded such amount to the tenant in question, offset such refund against amounts owed to Seller by the tenant or rights offset such refund against present and/or future amounts of Base Rent or Operating Expense Reimbursements to acquire equity interests in any Applicable Entity. None of be paid by the Applicable Entities have, or have ever had, any subsidiariestenant(s).
(xiiv) To the actual knowledge of Seller is and with the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear exception of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations leasing commissions owed in connection with the Regulatory Agreements (as defined below) New Leases set forth on Schedule 6(a)(xv) (EXHIBIT S and any other New Leases executed after the “Ongoing Indemnification Obligations”)date of this Agreement, there are no leasing commissions due and payable in connection with any of the Leases.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As B. When used in this Agreement, “the term "Actual Knowledge of Seller’s knowledge” " shall mean and be limited to the actual present knowledge of Jun Sakumoto, without regard to any (and not imputed, implied or constructive knowledgeconstructive) current knowledge of Xxxxxx Xxxxxxxxx, without independent inquiry Director - Dispositions of Equity Office Holdings, L.L.C., a Delaware limited liability company ("EOH") and Xxxx Xxxxxx, Regional Vice President of the management company for the Property, Equity Office Properties, L.L.C., a Delaware limited liability corporation. Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxxxxx nor Xxxx Xxxxxx shall have any personal liability or duty liability whatsoever with respect to any matters set forth in this Agreement or any of investigation Seller's representations and/or warranties herein being or becoming untrue, inaccurate or incomplete in any respect (it being understood that, subject to the provisions of this Agreement, Seller's liability under this Agreement is not limited by the limitation on personal liability of such person or any other officer, director, partner and/or member of Sellerindividuals).
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Income Properties LTD Series Ix)
Seller’s Representations and Warranties. In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(ia) Seller and each Applicable Entity is duly organized, validly existing a limited liability company organized and in good standing under the laws of its jurisdiction the State of formation.
(iiDelaware. Subject to KBS Growth & Income REIT, Inc.’s obtaining board approval pursuant to Section 7.2(g) above, Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase transactions contemplated hereby, and sale transactions provided for herein without subject to KBS Growth & Income REIT, Inc.’s obtaining any further consents or approvals fromboard approval pursuant to Section 7.2(g) above, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesexcept as otherwise expressly set forth herein.
(iiib) There are is no actions, suits, claims, assessments, agreement to which Seller is a party or proceedings pending or, to Seller’s knowledgeActual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) To Seller’s Actual Knowledge, threatened except as disclosed on Schedule 3 attached hereto, Seller has received no written notice from any governmental agency in the last 12 months that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(d) To Seller’s Actual Knowledge, except as disclosed on Schedule 3 attached hereto, Seller has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to the Property.
(e) To Seller’s Actual Knowledge, except as disclosed on Schedule 3 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed and is continuing against Seller that arises out of the ownership of the Property and would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities Property or the Property use thereof, or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser thatBuyer as of the date hereof as follows:
(ia) Seller has all requisite limited liability company power and each Applicable Entity authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of Seller. This Agreement has been duly executed and delivered by Seller, and constitutes a valid and binding obligation of Seller, enforceable against such Seller in accordance with its terms.
(b) Seller is duly organized, a limited liability company validly existing and in good standing under the laws of its the jurisdiction of formation.
(ii) its organization. Seller has full right, power, limited liability company power and authority to execute carry on the business in which it is engaged. The execution and deliver delivery of this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreementdo not, and the consummation by Seller of the transactions contemplated herebyhereby will not, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller result in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, a breach or proceedings pending or, to default under Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closinggoverning instrument.
(xic) Other Seller does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement, other than any amounts required to be paid by Seller to UBS Investment Bank, which shall be the Equity Interestssole responsibility of Seller.
(d) Except for consents and approvals already obtained, neither no consent or approval of any Person, is required with respect to the execution and delivery of this Agreement by Seller nor any other party has equity interests or rights to acquire the consummation by Seller of the transactions contemplated hereby or the performance of Seller’s obligations under the Agreement.
(e) Seller legally and beneficially owns 100% of the issued and outstanding equity interests in any Applicable Entity. None Marathon Manager and Marathon Manager legally and beneficially owns 50% of the Applicable Entities haveissued and outstanding equity interests in the LLC, or have ever hadin each case free and clear of any liens, any subsidiaries.
(xii) Seller is the record claims and beneficial owner encumbrances. Upon consummation of the Equity Interests and has transactions contemplated hereby, Buyer shall acquire good and valid title to the Equity LLC Interests, free and clear of any liens, claims and encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiiif) Assuming that Purchaser has With the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear exception of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations arising in connection with the Regulatory Agreements Orion Loan (as defined belowin Section 7.05) set forth on Schedule 6(a)(xv) (and any guarantees of direct obligations of Marathon Manager or the “Ongoing Indemnification Obligations”).
(xvi) To LLC relating solely to the extent there are Property or the development thereof, neither Marathon Manager nor the LLC is a guarantor of any proxies to vote indebtedness or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right obligations of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing or any of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Selleraffiliates.
Appears in 1 contract
Samples: Limited Liability Company Interests Purchase Agreement (Boykin Lodging Co)
Seller’s Representations and Warranties. In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Real Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer:
(ia) Seller and each Applicable Entity is duly organized, validly existing a limited liability company organized and in good standing under the laws of its jurisdiction the State of formation.
(ii) Delaware. Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals fromcontemplated hereby, or and, the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesexcept as otherwise expressly set forth herein.
(iiib) There are is no actions, suits, claims, assessments, agreement to which Seller is a party or proceedings pending or, to Seller’s knowledgeActual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c) To Seller’s Actual Knowledge, Seller has not received written notice of the existence of any attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Seller.
(d) To Seller’s Actual Knowledge, except as disclosed on Schedule 4 attached hereto, Seller has received no written notice from any governmental agency in the last 12 months that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(e) To Seller’s Actual Knowledge, except as disclosed on Schedule 4 attached hereto, Seller has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to the Property.
(f) To Seller’s Actual Knowledge, except as disclosed on Schedule 4 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed and is continuing against Seller that arises out of the ownership of the Property and would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities Property or the Property use thereof, or Seller’s ability to perform hereunder.
(ivg) Except for Permitted Encumbrances Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 the Internal Revenue Code of 1986, as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Dateamended.
(vh) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has Property Information delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) Buyer is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result Information in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, property manager’s possession and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which maintained by Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since business; provided, however, Seller makes no representation or warranty as to the date accuracy or completeness of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)Property Information.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller Buyer as follows, which representations and each Applicable Entity is duly organized, validly existing warranties are true and correct in good standing under all material respects as of the laws date of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and the Closing Date. Buyer agrees to consummate inform Seller promptly in writing if it discovers that any representation or warranty of Seller is inaccurate in any material respect. The representations and warranties shall survive for twelve (12) months after the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory ApprovalsClosing.
10.1. The execution, delivery and performance of this Agreement by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. The execution, delivery and performance of this Agreement does not violate any contract, agreement or commitment to which Seller is a party or by which Seller is bound. The person(s) executing this Agreement on behalf of Seller are authorized to do so on behalf of Seller. 9/12/2013 12:02 PM
10.2. This Agreement, when Agreement has been duly executed and delivered by Seller and Purchaser, will constitute the is a valid and binding agreement obligation of Seller, enforceable against Seller in accordance with its terms terms, subject to principles bankruptcy, reorganization and other similar laws affecting the enforcement of bankruptcy and general equitable principlescreditors' rights generally.
10.3. Seller has no knowledge of any action, proceeding, investigation, bankruptcy or insolvency proceeding pending or threatened against Seller or any of the other Seller Parties which would affect or impair in any respect Seller's ability to consummate the transactions contemplated hereby or which questions the validity or enforceability of this Agreement.
10.4. Seller is not a "foreign person" within the meaning of Section 1445(0(3) of the Internal Revenue Code.
10.5. Except for the Cell Tower Lease, a true, correct and complete copy of which is attached hereto as Schedule 2, and except for the License to Bay Cities described in Section 8.1, there are no other leases or other agreements (iiiwhether oral or written) entered into by Seller or to which Seller is a party affecting or relating to the right of any party with respect to the possession of the Property or any portion thereof.
10.6. There are no outstanding leasing commissions payable with respect to the Cell Tower Lease or any other leases with respect to any portion of the Property or Buildings or Improvements and there is no written obligation to pay any leasing commission for any renewal or extension of the term of the Cell Tower Lease.
10.7. There are no actions, suits, claims, assessmentsproceedings, or proceedings governmental investigations, pending oror threatened before any agency, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operationcourt, or maintenance of other governmental authority which relates to the Applicable Entities Property, or any portion thereof, or the Property use thereof, or Seller’s ability to perform hereunderits obligations under this Agreement.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with 10.8. With respect to the ownershipacts of Seller and its contractors and subcontractors and materialmen, operationthere are no sums due, and maintenance of the Applicable Entities and the Property have been paid owing, or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered unpaid for labor or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect materials furnished to the Property (including health hazards or dangersany part thereof) or on behalf of Seller which might give rise to a mechanic’s or materialmen’s lien.
10.9. To the best of Seller’s actual knowledge, nuisance or wasteexcept as otherwise disclosed in the Property Information (as defined in Section 7.2 above), there are no Hazardous Materials on, in or under the Property in violation of applicable environmental laws and the Property does not contain any underground tanks. For purposes of this Agreement, Hazardous Materials shall mean any chemical, substance, waste, or material which is deemed hazardous, toxic, a pollutant, or a contaminant under any federal, state or local law, statute, ordinance, rule, regulation, or judicial or administrative order or decision, or which has shown to have significant adverse effects on human health or the environment, including, without limitation, substances defined as “hazardous substances,” “hazardous materials,” or “toxic substances” in the Comprehensive 9/12/2013 12:02 PM Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq.; and those substances defined as “hazardous wastes” in Section 25117 of the California Health & Safety Codes or as “hazardous substances” in Section 25316 of the California Health & Safety Code; in the regulations adopted and publications promulgated pursuant to such laws including applicable provisions of the California Administrative Code; and in the Hazardous Materials storage, use or discharge ordinances of Santa Xxxxx County.
10.10. Seller has not received notice of default in any of Seller’s obligations or liabilities pertaining to the Property or applicable portion thereof, nor, to the best of Seller’s knowledge, is there any state of facts or circumstances or condition or event which, if not correctedafter notice or lapse of time or both, would constitute or result in termination of insurance coverage or increase its costs therefor, (B) any violation such default.
10.11. Seller has received no written notice of any violations of applicable law, ordinance, rule, regulation, code, or requirement of any governmental agency, body, or subdivision affecting or relating to the Property, or applicable portion thereof, including, without limitation, the Americans With Disabilities Act or any of the regulations promulgated thereunder, or any subdivision, zoning, building, healthuse, environmental, traffic, flood control, fire safety, handicap or other environmental law, code, ordinance, rule or regulationrule, requirement, or (C) any proceedings regulation which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Propertyhave not been resolved.
(viii) Neither 10.12. Except for the Service Contracts delivered to Buyer pursuant to Section 7.2 above, Seller nor has no actual knowledge of any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism)Service Contracts, 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.
(ix) No Applicable Entity has any rightagreements, title or interest in any property other than the License to Bay Cities described in Section 8.1, affecting the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of or the current limited liability company agreement operation or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchasermaintenance thereof. The Organizational Documents are only Service Contracts in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, existence as of the date thereof, and otherwise accurately reflects, in all material respects, Effective Date of this Agreement are identified on Schedule 3 attached hereto.
10.13. All consents or waivers of or by any third party which are necessary to permit the subject matter thereof as consummation by Seller of the date thereof. transactions contemplated pursuant to this Agreement have been obtained or will be obtained by Seller has delivered or made available prior to Purchaser true, correct and complete copies the Close of all Regulatory Agreements and all amendments thereto or modifications thereofEscrow.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of 10.14. The Seller is not an Ineligible Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Super Micro Computer, Inc.)
Seller’s Representations and Warranties. As used in this Section 6, the phrase "to the extent of Seller's actual knowledge" shall mean the actual knowledge of Rxxx Xxxxxxx, asset manager for Seller ("Seller's Representative"). There shall be no duty imposed or implied to investigate, inspect or audit any such matters and no implied, imputed or constructive knowledge of Seller’s Representative, and there shall be no personal liability on the part of Seller's Representative. To the extent Purchaser has or acquires actual knowledge prior to the Closing Date that these representations and warranties are inaccurate, untrue or incorrect in any material way and thereafter elects to consummate the transactions contemplated by this Agreement, such representations and warranties shall be deemed modified to reflect Purchaser's knowledge. If at any txxx Xxxxxx discovers that any of warranties or representations set forth herein is untrue in any material respect, then Seller shall notify Purchaser of such discovery, in which event such warranty or representation shall be deemed modified to the extent described in such notice. Upon Seller giving written notice to Purchaser of the modification of any such warranty or representation that was untrue in any material respect, then, notwithstanding any other provision of this Agreement, Purchaser shall have five (5) days after receipt of such notice to notify Seller of Purchaser’s election to terminate the Agreement, provided, however, notwithstanding if any provision in this Agreement to the contrary, that (a) if a change in facts after the date hereof causes the representations made in the Section 6.12 to be untrue (e.g., a lease expires, a tenant defaults or vacates, etc.), Seller has no liability and Purchaser will proceed to Closing, it being agreed that Seller shall have no liability for any tenant default and Seller does not guaranty the obligations of any tenant under the respective Tenant Leases; (b) if a change in facts after the date hereof causes the representation made in Section 6.7 or 6.8 to be untrue, Seller shall have the right to adjourn the Closing for a period not to exceed thirty (30) days to cure such breach, provided that if Seller fails to cure such breach prior to Closing (as may be extended) Purchaser shall have the right, as it sole and exclusive remedy, to terminate this Agreement is receive a refund of the Exxxxxx Money; and (c) if a change in facts after the date hereof causes the representation made in Section 6.10 to be untrue, the provisions of Section 11.2 shall govern (collectively, (a)-(c) being referred to herein as the “Permitted Variances”). If Purchaser elects to terminate the Agreement hereunder, Purchaser shall be entitled to receive a complete refund of all the Exxxxxx Money in accordance with the terms hereof, together with all interest accrued thereon (less and except the sum of One Hundred Dollars ($100), which shall be paid to Seller as consideration for entering into this Agreement), and neither party shall thereafter have any rights or obligations to the other hereunder, other than pursuant to any provision hereof which expressly survives the termination of this Agreement, except that in the event such untrue warranty or representation was the result of intentional fraud on the part of Seller, Purchaser will have the right to have its actual third party out of pocket expenses (not to exceed $50,000) incurred in connection with the transaction that is the subject matter of this Agreement reimbursed by Seller. If Purchaser fails to give a written notice of termination within the time required herein, it shall be conclusively deemed that Purchaser has elected to proceed with the transaction contemplated by this Agreement without any abatement to the Purchase Price and/or claim against Seller. As an inducement to Purchaser to enter into this Agreement and to purchase the Property, Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.follows:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatBuyer as follows:
(i) Seller is a public entity and each Applicable Entity is duly organizedhas the full power and authority to enter into and comply with the terms of this Agreement and has, validly existing or at Closing will have, obtained all necessary consents and in good standing under approvals required for Seller to enter into and consummate the laws of its jurisdiction of formation.Transactions;
(ii) This Agreement and all documents executed by Seller has full right, power, and authority to execute and deliver in connection with this Agreement and which are to consummate be delivered to Buyer at Closing, are or at the purchase and sale transactions provided for herein without obtaining any further consents or approvals fromtime of Closing will be, or the taking of any other actions with respect toduly authorized, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller Seller, and Purchaserare, or at Closing will constitute the be, valid and binding obligations of Seller and do not, and at the time of Closing will not, violate any provisions of any agreement of Seller, enforceable against or judicial order to which Seller in accordance with its terms subject is a party or to principles of bankruptcy and general equitable principleswhich Seller is subject.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect Seller is not a “foreign person” within the ownership, operation, or maintenance meaning of Section 1445(f)(3) of the Applicable Entities or the Property or Seller’s ability to perform hereunderCode.
(iv) Except for Permitted Encumbrances Seller is currently (a) in compliance with and as may be reflected on shall at all times during the Closing Statement term of this Agreement remain in compliance with respect to Proration Items, all bills OFAC and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the Executive Order 13224, dated September 24, 2001, Executive Order 2001 and entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), or regulation relating thereto, and (b) not listed on, and shall not during the term of this Agreement be listed on, the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or on any other similar list maintained by OFAC or other governmental action authority pursuant to any authorizing statute, executive order, or regulation.
(v) To Seller’s actual knowledge, there are no pending legal actions or arbitrations, at law or in equity, affecting the Property, and none have been threatened in writing against Seller.
(vi) To Seller’s actual knowledge, Exhibit H is a complete list of all Leases affecting the Property as of the Effective Date and the Leases that have been provided to Buyer by Seller are copies of the Leases that Seller uses in the ordinary course of Seller’s ownership and operation of the Property. Notwithstanding anything to the contrary contained in this Agreement, Seller does not and represent or warrant that any particular Lease will be in force or effect at Closing or that the Tenants under the Leases will have performed their obligations thereunder. The termination of any Lease prior to Closing by reason of the Tenant's default shall not engage affect the obligations of Buyer under this Agreement in any dealings manner or transactions entitle Buyer to an abatement of or be otherwise associated credit against the Purchase Price or give rise to any other claim on the part of Buyer.
(vii) To Seller’s actual knowledge, Exhibit I is a complete list of all Operating Agreements affecting the Property as of the Effective Date and the Operating Agreements that have been provided to Buyer by Seller are copies of the Operating Agreements that Seller uses in the ordinary course of Seller’s ownership and operation of the Property.
(viii) To Seller’s actual knowledge, Seller has not received written notice from any governmental authority of any environmental condition at the Property that does not comply with such persons applicable environmental laws and regulations, except as disclosed in any environmental report obtained by Buyer or entitiesin any materials delivered or made available to Buyer in connection with Buyer’s due diligence investigation of the Property.
(ix) No Applicable Entity To Seller’s actual knowledge, Seller has not received written notice from any rightgovernmental authority of any violation of any applicable law, title ordinance, rule or interest in any property other than regulation applicable to the Property and any Excluded Property Agreementsthat have not been cured.
(x) TrueTo Seller’s actual knowledge, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall Seller has not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor received written notice from any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear governmental authority of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in pending condemnation action against any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingProperty.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Seller’s Representations and Warranties. In consideration of Buyer entering into this Agreement, Seller represents makes representations and warrants warranties set forth in this Section, which are material and are being relied upon by Buyer (the continued truth and accuracy of which shall constitute a condition precedent to Purchaser that:
Buyer’s obligations hereunder). To the extent that Seller becomes aware of any conflict with the representations and warranties set forth herein or that any covenant of Seller under this Agreement is incapable of being performed after the Effective Date and prior to the Close of Escrow, Seller shall provide Buyer with written notice thereof, in which case Buyer, within five (5) calendar days following receipt of such notice, shall have the right to either (i) Seller and each Applicable Entity is duly organizedterminate this Agreement, validly existing and in good standing under which case the laws provisions of its jurisdiction of formation.
Sections 6(c) shall apply, or (ii) Seller has full rightproceed with the transaction described herein, powerwaiving such inconsistent representation(s) and warranty(ies) (provided, however, that Buyer shall not be deemed to have waived any such inconsistent representation(s) and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions warranty(ies) with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by to those that Seller is incapable of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, performing due to Seller’s knowledge, threatened that would reasonably breach of this Agreement or intentional frustration thereof). In no event shall Seller be expected liable to materially and adversely affect the ownership, operationBuyer for, or maintenance be deemed to be in default pursuant to this Agreement by reason of any inaccuracy of a representation or warranty which results from any change that (i) occurs between the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Effective Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
Close of Escrow; and (v) The rent roll attached hereto as Schedule 6(a)(vii) is a trueexpressly permitted under the terms of this Agreement or is beyond the reasonable control of Seller to prevent; provided, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflectshowever, in all material respectssuch event, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available Buyer shall be entitled to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any terminate this Agreement by providing written notice of violation (or such termination to Buyer and, in such event, Seller shall immediately return the extent receivedSecond Deposit, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, norplus all interest earned thereon, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, Buyer and the current certificate of formation or certificate of limited partnership (as applicable) of parties shall have no further obligations to each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect andhereunder, except to the extent approved expressly provided herein. If, in spite of such nonfulfillment of the conditions set forth in Section 6(a), the Close of Escrow occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by Purchaserall statements made in any notice or notices of modification as given by Seller to Buyer pursuant to this Section 14 prior to the Close of Escrow (provided, however, that any of Seller’s representations and warranties shall not be amended, modified, supplemented or assigned prior deemed to Closing.
(xi) Other than the Equity Interests, neither Seller have been modified nor shall Buyer be deemed to have waived any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record such representations and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) warranties with respect to any existing loans evidenced, secured those affected by Seller’s breach of this Agreement or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”Seller’s intentional frustration thereof).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. A. Seller represents and warrants to Purchaser thatthe following:
(i) As of the date of this Agreement, to the "Actual Knowledge of Seller" (as hereinafter defined), except as set forth on EXHIBIT H attached hereto, Seller has received no written notice from any governmental authority of any material violation of any, state or federal law, rule or regulation concerning the Property or any part thereof which has not been cured prior to the date of this Agreement; provided, however, that Seller makes no representation or warranty with respect to (A) the information or matters disclosed in the items set forth in EXHIBIT P attached hereto, and each Applicable Entity is duly organized, validly existing and in good standing under (B) the laws of its jurisdiction of formationProperty's compliance with the American with Disabilities Act.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate The list attached hereto as EXHIBIT C lists all of the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or Service Contracts as of the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller date of this Agreement, and the consummation by Seller service provided thereunder, the vendor under each Service Contract and, if such Service Contract is written, the date of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlessuch Service Contract.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected set forth on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll EXHIBIT I attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunderhereto, as of the date of the rent rollthis Agreement, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any no written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies pending litigation with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, which would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to after Closing.
(xiiv) Other than Prior to the Equity Interestsdate of this Agreement, neither Seller nor has calculated the reconciliation of Operating Expenses and Operating Expense Reimbursements for calendar year 1997 and has billed the tenants for any other party remaining amounts owed to Seller as a result of such reconciliation. In those instances where a refund is owed to a tenant, Seller has equity interests either refunded such amount to the tenant in question, offset such refund against amounts owed to Seller by the tenant or rights offset such refund against present and/or future amounts of Base Rent or Operating Expense Reimbursements to acquire equity interests in any Applicable Entity. None of be paid by the Applicable Entities have, or have ever had, any subsidiariestenant(s).
(xiiv) To the Actual Knowledge of Seller is and with the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear exception of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations leasing commissions owed in connection with the Regulatory Agreements (as defined below) New Leases set forth on Schedule 6(a)(xv) (EXHIBIT S and any other New Leases executed after the “Ongoing Indemnification Obligations”)date of this Agreement, there are no leasing commissions due and payable in connection with any of the Leases.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As B. When used in this Agreement, “the term "Actual Knowledge of Seller’s knowledge” " shall mean and be limited to the actual present knowledge of Jun Sakumoto, without regard to any (and not imputed, implied or constructive knowledgeconstructive) current knowledge of Xxxxxx Xxxxxxxxx, without independent inquiry Vice President- Dispositions of Equity Office Properties Trust, a Maryland real estate investment trust, and Xxxx Xxxxxx, Regional Senior Vice President of EOPMC. Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxxxxx nor Xxxx Xxxxxx shall have any personal liability or duty liability whatsoever with respect to any matters set forth in this Agreement or any of investigation Seller's representations and/or warranties herein being or becoming untrue, inaccurate or incomplete in any respect (it being understood that, subject to the provisions of this Agreement, Seller's liability under this Agreement is not limited by the limitation on personal liability of such person or any other officer, director, partner and/or member of Sellerindividuals).
Appears in 1 contract
Samples: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 3)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) that Seller has legal title to the Ownership Interest, free and clear of all liens, pledges, or encumbrances of any kind, nature, or description, with full right, and unrestricted legal power, authority, and authority right to execute enter into this Purchase and Sale Agreement (“Agreement”), to transfer and deliver this Agreement and the Ownership Interest to consummate Buyer pursuant hereto. Hereafter, Buyer will be the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller owner of the transactions contemplated herebyOwnership Interest and receive legal title to such Ownership Interest, have been duly free and validly authorized by clear of all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suitsliens, claims, assessmentspledges, or proceedings pending orencumbrances of any kind, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operationnature, or maintenance description, excepting only those restrictions contained in the Bylaws and Articles of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent rollIncorporation. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor does not retain any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any further right, title or interest in any property the Company whatsoever, except as specified herein. Seller covenants and agrees to warrant and defend the title to the Ownership Interest sold and conveyed to Buyer against all adverse claims. With respect to Seller’s receipt of the Shares as consideration for the Ownership Interest, Seller further represents and warrants as follows:
(A) An investment in the Buyer is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Buyer and the Shares;
(B) Seller has such knowledge and experience in finance, securities, investments, and other than business matters so as to be able to protect its interests in connection with this transaction;
(C) Seller is an "Accredited Investor" as such term is defined in Rule 501 of Regulation D promulgated under the Property and any Excluded Property AgreementsUnited States Securities Act of 1933, as amended.
(xD) True, correct Seller hereby acknowledges that this offering of Shares has not been reviewed by the United States Securities and complete copies Exchange Commission ("SEC") and that the Shares are being issued by the Company pursuant to an exemption from registration provided by Section 4(2) of the current limited liability company agreement or limited partnership agreement (as applicable) Securities Act of each Applicable Entity1933 and that the stock certificate evidencing the Shares received by Seller will contain a legend in substantially the following form: THE STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, with all amendments and modifications theretoAS AMENDED, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable EntityOR UNDER ANY APPLICABLE STATE SECURITIES LAWS. WITHOUT SUCH REGISTRATION, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to ClosingSUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER AND THAT SUCH TRANSFER WILL NOT BE IN VIOLATION OF THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xiiE) Seller is acquiring the record Shares as principal for Seller’s own benefit and beneficial owner with the intent to hold the same indefinitely for investment purposes and not with a view to resale or distribution;
(F) Seller is not aware of any advertisement of the Equity Interests and has good and valid title to the Equity InterestsShares. Seller’s representations, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interestswarranties, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth duties contained in the Organizational Documents or in any of Agreement shall survive the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, execution and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, delivery hereof and the unrestricted right delivery of Seller to vote the Equity Interests will be transferred to Purchaser at ClosingShares and Ownership Interest.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. The Seller represents and warrants to Purchaser thatIFT as follows:
A. The Seller is acquiring the Common Stock for Seller's own account, for investment purposes only and not with a view towards or in connection with the public sale or distribution thereof in violation of the Securities Act.
B. The Seller is (i) Seller and each Applicable Entity is duly organizedexperienced in making investments of the kind contemplated by this Agreement, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full rightcapable, powerby reason of Seller's business and financial experience, of evaluating the relative merits and risks of an investment in the Common Stock, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, able to afford the loss of Seller’s knowledge, threatened 's investment in the Common Stock.
C. The Seller understands that would reasonably be expected to materially the Common Stock is being offered and adversely affect sold by IFT in reliance on an exemption from the ownership, operation, or maintenance registration requirements of the Applicable Entities or Securities Act and equivalent state securities and "blue sky" laws, and that IFT is relying upon the Property or accuracy of, and Seller’s ability 's compliance with, the Seller's representations, warranties and covenants set forth in this Agreement to perform hereunderdetermine the availability of such exemption and the eligibility of the Seller to purchase the Common Stock.
(iv) Except for Permitted Encumbrances D. The Seller has been furnished with or provided access to all materials relating to the business, financial position and as may be reflected on results of operations of IFT and TNC, and all other materials requested by the Closing Statement with respect Seller to Proration Items, all bills and other payments due and payable before the Closing Date enable Seller to make an informed investment decision with respect to the ownership, operation, and maintenance of the Applicable Entities Common Stock and the Property have Warrant.
E. The Seller acknowledges that Seller has been paid or will be paid prior furnished with copies of IFT's Annual Report on Form 10-KSB for the fiscal year ended October 31, 1998, IFT's Quarterly Report on Form 10-QSB for the fiscal quarters ended January 31, 1999 and April 30, 1999, IFT's Schedule 13D dated May 11, 1999; and all other reports and documents heretofore filed by IFT with the Securities and Exchange Commission (the "Commission") pursuant to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct Securities Act and complete listing the Securities Exchange Act of all Leases, and all Tenants thereunder1934, as of amended (the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste"Exchange Act"), whichsince April 30, if not corrected, would result in termination of insurance coverage or increase its costs therefor, 1999 (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect collectively the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller."Commission Filings"
Appears in 1 contract
Samples: Warrant Purchase Agreement (Global Technologies LTD)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatas follows:
(i) At Close of Escrow, Seller will have and each Applicable Entity is duly organizedwill convey to Purchaser good and indefeasible title to the Real Property, validly existing Appurtenances and in good standing under Improvements by Special Warranty Deed (the laws of its jurisdiction of formation"Deed"), subject only to the Permitted Exceptions.
(ii) Seller has full rightTo Seller's Actual Knowledge, power, the Rent Roll is true and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by correct in all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesmaterial respects.
(iii) There are no actionsTo Seller's Actual Knowledge, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance as of the Applicable Entities or Effective Date, Seller has received no notice from any governmental authority with jurisdiction over the Property of any current violation by the Property of any laws, ordinances or Seller’s ability regulations applicable to perform hereunderthe Property. Seller shall immediately provide Purchaser with a copy of any such notices received after the Effective Date.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsTo Seller's Actual Knowledge, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance there is no litigation pending against Seller that arises out of the Applicable Entities and ownership of the Property have been paid or will be paid prior to the Closing Date.Property;
(v) The rent roll attached hereto as Schedule 6(a)(vTo Seller's Actual Knowledge, no condemnation or eminent domain proceedings are pending or threatened against the Property.
(vi) This Agreement and all documents executed by Seller that are to be delivered to Purchaser at the Close of Escrow are, or at the time of Close of Escrow will be, duly authorized, executed and delivered by Seller, and are, or at the time of Close of Escrow will, be legal, valid and binding obligations of Seller, and do not, and at the time of Close of Escrow, will not, violate any provisions of any contract or judicial order to which Seller is a trueparty or to which Seller is subject.
(vii) To Seller's Actual Knowledge, the Financial Data provided to Purchaser by Seller are true and correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects.
(viii) To the best of Seller's knowledge, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available all Due Diligence Items provided to Purchaser are true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as such items. None of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available Due Diligence Items provided to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companiesamended, governmental agencies modified or authorities or from any other parties related terminated by Seller except as disclosed in writing to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entitiesPurchaser.
(ix) No Applicable Entity has any rightThere are no contracts or agreements relating to the ownership, title or interest in any property operation and maintenance of the Property that will survive the Closing, other than the Property and any Excluded Property AgreementsService Contracts that Purchaser elects to assume at Closing.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on From and after the execution of this Agreement to and including the Closing Date, Seller shall cause its Property Manager to manage and will be terminated prior maintain the Property and to Closing, market and rent available apartment units in a manner consistent with its historical practices. For the unrestricted right purposes of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “whenever the phrase "to Seller’s knowledge” 's Actual Knowledge" is used, then it shall mean be deemed to refer to the actual present knowledge of Jun SakumotoJohn F. Kennedy, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Sellerpersox xxxxxxxxxxx xny investigation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chrisken Partners Cash Income Fund L P)
Seller’s Representations and Warranties. Seller represents and warrants To induce Purchaser to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver enter into this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of transaction described in this Agreement, Seller hereby makes the express representations and warranties in Sections 7.1.1 through 7.1.26 inclusive, upon which Seller acknowledges and agrees that Purchaser is entitled to rely. Seller shall have the consummation by Seller right to modify or update any representation and warranty in this Agreement to the extent that (i) such representation and warranty needs to be modified or updated to maintain the truth or accuracy of the transactions contemplated herebyapplicable representation or warranty or the information disclosed therein, and (ii) Seller did not have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance Knowledge of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect facts giving rise to the ownership, operation, and maintenance of modification or update at the Applicable Entities and time the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or Due Diligence Materials were made available to Purchaser or at the time that the representation and warranty was made. If Seller modifies or updates any representation or warranty or in the event Purchaser acquires Knowledge from a reasonably reliable source of a fact which, if true, correct and complete copies would modify or update any representation or warranty of all Leases and all amendments thereto or modifications thereof.
Seller (vi) Schedule 6(a)(vi) is each, a true“Post Effective Date Disclosure”), correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to then (A) Purchaser shall have the right to terminate this Agreement if, and only if, the corresponding representation or warranty or other information would be untrue or incorrect in any conditionsmaterial respect in the absence of such Post Effective Date Disclosure which is amended or supplemented by such Post Effective Date Disclosure and would, defects or inadequacies with respect to the Property (including health hazards or dangersin Purchaser’s reasonable discretion, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, a material adverse effect to (Bx) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification Purchaser’s ownership of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (Ay) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations the operation of the Office of Foreign Asset Control Business upon or after Closing or (“OFAC”z) the value of the Department of the Treasury Hotel (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking related Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support TerrorismBusiness), 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.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive if Purchaser proceeds to Closing notwithstanding such Post Effective Date Disclosure, the corresponding representation, warranty or other outstanding rightsinformation shall be deemed qualified by such Post Effective Date Disclosure for the purposes of limiting the defense and indemnification obligations of Seller under this Agreement. For the avoidance of doubt, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements the discovery by Purchaser or commitments delivery by Seller of any character under which Seller or any other person or entity is or may become obligated Property Agreement following the Effective Date shall be automatically deemed to sellresult in a material adverse effect as set forth in this Section 7.1, or giving any individual or entity a triggering Purchaser’s right to acquire, or terminate this Agreement as more particularly set forth in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except clause (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)hereinabove.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Clearview Hotel Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction Members, hereby make the representations and warranties set forth in this Section 7. All of formation.
(ii) Seller has full rightSeller's representations and warranties shall be true and correct as of the date of closing, powershall be deemed ratified by Seller's act of Closing, and authority any Schedules, documents or information to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance be furnished by Seller shall be updated and furnished to Purchaser at Closing. From and after the date of this Agreement, and until Closing, Seller shall not take any action or make any admission, which would have the consummation effect of violating any of the representations or warranties of Seller contained in this Agreement. The delivery and disclosure of any Schedule, document or information by Seller shall constitute Seller's and its Members' certificate and warranty that the same, and all information reflected therein, are completely accurate and current in all respects. All of the transactions contemplated herebywarranties and representations of Seller and its Members shall survive closing and the conveyance of the Property to Purchaser.
(a) The execution of this Agreement and the fulfillment of Seller's obligations hereunder shall not constitute or result in a breach of any term or provision of any existing mortgage, lease or other agreement to which Seller is a party or by which Seller is bound, except that the parties acknowledge and agree that Finova's approval is required for any assumption by purchaser of financing extended by Finova. All persons or entities whose joinder in the Deed would be necessary to convey title to Buyer hereunder have been identified herein as "Seller." This Agreement and all other instruments and documents to be executed and delivered by Seller to Purchaser hereunder or pursuant hereto have been or will be duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaserconstitute (or will constitute, will constitute as to those instruments and documents to be executed and delivered) the legal, valid and binding agreement obligations of Seller, Seller and enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlestheir respective terms.
(iiib) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser truereceived no written official notice, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any informal written or oral notice of violation (any contemplated condemnation proceedings against the whole or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification part of the Property.
(viiic) Neither Seller nor The Land is presently zoned to permit the development and operation thereon of residential time share units; there are no moratoria or similar conditions that will prevent the development and operation upon the Land of residential time share units; there are no current violations of any Applicable Entitybuilding, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders zoning or other equity owners, nor (B) requirements of any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of applicable governmental authority affecting 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) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entitiesProperty.
(ixd) No Applicable Entity Seller has no knowledge of any rightfact or condition which would result in the termination or reduction of the current access from the Land and Improvements on existing public streets; and Seller has no knowledge of any proposed road widening or other construction activity within the vicinity of the Land.
(e) Seller has no knowledge of any latent or patent defect or design deficiency in the foundation, structure, roof, paved areas or mechanical systems of the Improvements, including, without limitation, the heating, ventilation and cooling systems, the electrical system, the plumbing system or the elevators.
(f) There are no lawsuits presently filed and served, nor are there, to the knowledge of Seller, any lawsuits that are pending or have been threatened concerning the Property or any portion thereof, or Seller's title or interest in right to convey the Property or any property portion thereof hereunder, nor has Seller any knowledge of any claims or liens existing or threatened against the Property or any part thereof, other than those filed of record prior to the execution date of this Agreement.
(g) Seller is in sole and undisputed possession of the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under Timeshare Unit owners lawfully on the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiiiPremises) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is entitled to possession of all or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any portion of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingProperty.
(xvh) The Applicable Entities have There are no liabilitiesother contracts, leases, agreements, understandings or other obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) existing with respect to the Property or any existing loans evidencedportion thereof, secured other than as are reflected in this Agreement and the schedules and other information to be furnished hereunder.
(i) No person, firm, corporation, or governed other entity has any right or option to acquire the Property, or any part thereof.
(j) Seller has received no notice and has no knowledge of any pending liens, increased assessments or tax rates, or any special assessments to be made against the Property by governmental authority, except for a notice of a county-wide reassessment.
(k) Seller is current in all sales and use tax obligations relating to the Existing Loan Documents, Property.
(Bl) Seller is neither a "foreign person" nor "foreign corporation" as those which terms are adequately reflected and reserved against defined in the booksUnited States Internal Revenue Code, records as amended, and financial statements provided to PurchaserSeller shall ratify this warranty by affidavit at the time of closing.
(m) To the Seller's knowledge, (C) those which public water, public sanitary sewer, electricity, and telephone services have been incurred in installed to the ordinary course of business consistent with past practice since Improvements through appropriate easements.
(n) Except as disclosed on Schedule 7(n):
(i) To Seller's actual knowledge, the date Land and Improvements ("Premises") do not contain any Hazardous Materials.
(ii) To Seller's actual knowledge, there are no underground or above-ground storage tanks on or under the Premises, and Seller has no knowledge of the last delivered booksremoval of any underground or above-ground storage tanks from the Premises.
(iii) To Seller's actual knowledge, records and financial statements and which there are not and could not reasonably be expected to become, individually no transformers containing or in contaminated with Hazardous Materials on the aggregate, material in amountPremises, and Seller has no knowledge of the removal of any such transformers from the Premises.
(Div) the ongoing indemnification obligations Seller has not engaged in or permitted any Hazardous Materials Use in, at, under, or in connection with the Regulatory Agreements (as defined below) set forth Premises nor, to Seller's knowledge, has any previous owner or tenant of the Premises engaged in or permitted any Hazardous Materials Use in, at, under, on Schedule 6(a)(xv) (or in connection with the “Ongoing Indemnification Obligations”)Premises.
(xviv) To the extent there are Seller has not received notice or actual knowledge of: (1) any proxies to vote claim, demand, investigation, enforcement, response, removal, remedial or other similar arrangements entered into governmental or regulatory action instituted or threatened, against Seller or the Premises pursuant to any Hazardous Materials Law; (2) any claim, demand, suit or action made or threatened by Sellerany person against Seller or the Premises relating to any form of damage, such proxies loss or injury resulting from or claimed to vote result from, any Hazardous Materials on, about, beneath or other similar arrangements will not affect arising from the Equity Interests Premises or any alleged violation of any Hazardous Materials Law; and (3) any communication to or from any governmental or regulatory agency arising out of or in connection with Hazardous Materials on, about, beneath, arising from or generated at the Premises, including without limitation, any way on and after the Closing and will be terminated notice of violation, citation, complaint, order directive, request for information or response thereto, notice letter, demand letter or compliance schedule. If discovered prior to Closing, Seller shall immediately advise Buyer of any of the claims or communications listed in clauses (1) through (3) above and also shall immediately advise Buyer of the unrestricted right discovery of Seller any Hazardous Materials on, about, beneath, or arising from the Premises or the discovery of any condition on, arising from the Premises or the discovery of any condition on, about, beneath, or arising from the Premises which might give rise to vote liability, the Equity Interests will be transferred to Purchaser at Closingimposition of a statutory lien or require response, removal or remedial action under any Hazardous Materials Law.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviiivi) As used used, in this Agreement, “Seller’s knowledge” "Hazardous Materials" shall mean the actual present knowledge (i) asbestos in any form; (ii) urea formaldehyde foam insulation; (iii) transformers or other equipment which contain dialectic fluid containing levels of Jun Sakumotopolychlorinated biphenyls (PCB's) in excess of 50 parts per million; (iv) lead paint; (v) any substance or residual deemed hazardous or toxic, without regard or required to be disclosed, reported treated removed, disposed of or cleaned up by any imputedapplicable Hazardous Materials law, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or and (vi) any other officersubstance residual or material to which exposure is prohibited, directorlimited or regulated by any federal, partner and/or member state or local authority, or which, even if not so regulated, is known to pose a hazard to the health and safety of Sellerthe occupants of the Premises or of property adjacent to the Premises.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resort Investment LLC)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a rolls delivered to Purchaser and dated October 31, 2020 are true, correct and complete listing listings of all Leases, and all Tenants thereunder, as of the date of the rent rollsuch date, and otherwise accurately reflectsreflect, in all material respects, the subject matter thereof as of the date of the rent rollsuch date. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Equity Interests Purchase and Sale Agreement (Aspire Real Estate Investors, Inc.)
Seller’s Representations and Warranties. As a material inducement to NYSERDA to enter into this Agreement, Seller represents makes the following representations and warrants to Purchaser thatwarranties, all of which shall survive the execution and delivery of this Agreement:
(ia) that it has requested to terminate the OREC Agreement as provided herein due to its conclusion that the Selected Project is not economically feasible under the pricing agreed to and set forth in the OREC Agreement;
(b) that Seller and each Applicable Entity is a [corporation/limited liability company/partnership] duly organized, validly existing and in good standing under the laws of its the jurisdiction of formation.its organization;
(iic) that Seller has full right, power, all necessary power and authority to execute and deliver this Agreement and all other agreements contemplated herein and hereby and to consummate the purchase transactions contemplated hereby and sale thereby. The execution and delivery by Seller of this Agreement and all other agreements contemplated herein and hereby and the consummation of the transactions provided for contemplated hereby and thereby have been or, if not yet executed and delivered, will be when executed and delivered, duly authorized by Seller, and no other actions or proceedings on the part of Seller are necessary to authorize this Agreement or any other agreement contemplated herein without obtaining any further consents or approvals from, and hereby or the taking consummation of any other actions the transactions contemplated hereby and thereby;
(d) that this Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with respect to, any third parties, other than obtaining or delivering the terms herein;
(as applicablee) that the Regulatory Approvals. The execution, delivery and performance by Seller of Seller, the entry into this AgreementAgreement by Seller, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on this Agreement will not violate (i) Applicable Law or any provision of the part limited liability company agreement or other governing documents of Seller. This Agreement; (ii) violate, when executed and delivered by Seller and Purchaserconflict with, will result in a breach of or constitute (alone or with notice or lapse of time or both) a default or an event of default under any indenture, agreement (including the valid and binding limited liability company agreement of Seller), enforceable against mortgage, deed of trust, note, lease, contract or other instrument to which Seller in accordance with is a party or by which it or any of its terms subject to principles of bankruptcy and general equitable principles.
property is bound; or (iii) There result in the creation or imposition of any lien upon any property or assets of Seller;
(f) there are no undisclosed material legal actions, suits, claims, assessmentsor encumbrances, or proceedings liabilities pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and may adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform performance of this Agreement or NYSERDA's rights hereunder.;
(ivg) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, there are no claims against Seller or NYSERDA relating to or arising out of the Agreement that are not covered by the release contained in Section 4;
(Ah) Seller has neither assigned nor transferred any of their respective affiliatesclaims released herein, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a and no person or entity with whom U.S. persons has subrogated to or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) has any interest or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage rights in any dealings or transactions or be otherwise associated with such persons or entitiesclaims.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Conditional Termination Agreement
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if, prior to the Closing, Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer, in its sole discretion, shall have the right, as its sole and exclusive remedies, to (i) terminate this Agreement, when executed upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and delivered if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer within ten (10) Business Days after delivery to Seller of reasonable evidence of the loss sustained by Buyer and a statement of Buyer’s reimbursable expenses, in which case the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Breach and proceed to Closing. If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Change has occurred, such Seller R&W Change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and Purchaserwarranty to become inaccurate in any material respect, will and Seller is unable within ten (10) days after notice from Buyer of such R&W Change to eliminate such inaccuracy, Buyer shall have the right, as its sole and exclusive remedy, to (i) terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Change and proceed to Closing. If, however, such Seller R&W Change was caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and warranty to become inaccurate in any material respect, such Seller R&W Change shall constitute a Seller R&W Breach, and if Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of such Seller R&W Breach, such Seller R&W Breach shall be a default on the valid and binding agreement part of Seller, enforceable against and Buyer, in its sole discretion, shall have the right, as its sole and exclusive remedies, to (i) terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer within ten (10) Business Days after delivery to Seller of reasonable evidence of the loss sustained by Buyer and a statement of Buyer’s reimbursable expenses, in which case the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Breach and proceed to Closing. If, prior to the Closing, Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Seller shall be liable to Buyer for a breach by Seller of any one or more of the representations and warranties of Seller made herein, only if (i) the breach thereof is first discovered subsequent to Closing, (ii) the claim thereon is asserted by Buyer to Seller in accordance with its terms subject to principles of bankruptcy writing on or before the date one (1) year after Closing, and general equitable principles.
(iii) There are no actionsthe amount of any such loss, suitscost, claimsliability, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially damage and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
expense suffered by Purchaser (iv) Except when aggregated with all other amounts for Permitted Encumbrances and as which Seller may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations liable in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote breaches of its representations, warranties or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements covenants under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement) shall exceed the Material Damage Floor. In no event shall the amount of any such loss, “Seller’s knowledge” cost, liability, damage and expense for which Seller shall mean be liable under this Section 10 (when aggregated with all other damages for which Seller may be liable in connection with breaches of its representations, warranties or covenants under this Agreement) exceed the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerMaterial Damage Ceiling.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants that the representations and warranties set forth in this Section 6 are true and correct in all material respects as of the Effective Date and as of the Closing Date except as modified in accordance with this Section. If Seller learns that any of the following representations and warranties ceases to be true in any material respect, Seller shall give prompt notice to Purchaser (which notice shall include copies of the instrument, correspondence, or document in Seller's possession, if any, upon which Seller's notice is based). If Seller shall give such a notice, Purchaser shall have five (5) business days after the giving of such notice to (i) terminate this Agreement, whereupon Escrow Agent shall return the Exxxxxx Money to Purchaser and the parties shall be relieved from all further obligations hereunder, except as specifically set forth herein or (ii) waive such matter and proceed to Closing without any abatement or reduction in the Purchase Price on account thereof. If Purchaser does not timely give such notice, Purchaser shall be deemed to have elected to waive such matter. If Purchaser shall waive or be deemed to have waived such matter, then the affected representation or warranty shall be deemed modified to reflect such matter. To the extent Purchaser has knowledge or is deemed to know prior to the date hereof that any of these representations and warranties are inaccurate, untrue or incorrect in any way, such representations and warranties shall be deemed modified to reflect Purchaser's knowledge or deemed knowledge. Purchaser shall be deemed to know a representation or warranty is untrue, inaccurate or incorrect if this Agreement or any files, documents, materials, analyses, studies, tests or reports provided, disclosed or made available to Purchaser prior to the date hereof contains information which is inconsistent with such representation or warranty. If Purchaser acquires knowledge of any inaccuracy, untruth or incorrectness of any representation or warranty contained in this Agreement, Purchaser shall notify Seller the sooner of the Closing or within five (5) days of the acquisition of such knowledge. If Purchaser does not timely give such notice, the affected representation or warranty shall be deemed modified to reflect such matter. As used in this Agreement, the phrase “to the actual knowledge of Seller” (or similar words) shall mean the actual knowledge of Jxxxxx X. Xxxxxx, Xx. There shall be no duty imposed or implied to investigate, inspect or audit any such matters, and there shall be no personal liability on the part of such individuals. Subject as aforesaid, Seller represents and warrants to Purchaser that:
(ia) To the actual knowledge of Seller, there are no leases or other agreements for occupancy in effect with respect to the Premises and none shall be in effect at Closing other than the Seller Lease.
(b) To the actual knowledge of Seller, Seller has received no written notices from governmental authorities of legal violations which would have a material adverse effect on the business operations of the Premises and which have not previously been corrected.
(c) To the actual knowledge of Seller, there is no litigation against Seller or the Property which, if decided adversely to Seller, would have a material adverse effect on the business operations of the Property.
(d) To the actual knowledge of Seller, there are no Contracts, other than as listed on Exhibit “F”, attached hereto and made a part hereof. This representation does not derogate from Seller's rights to enter into new Contracts, subject to Section 8.
(e) Seller and each Applicable Entity is duly organizeda corporation, validly existing and in good standing organized under the laws of its jurisdiction the State of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory ApprovalsFlorida. The execution, delivery delivery, and performance of this Agreement by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly authorized and validly authorized by all necessary action on the part no consent of Seller. This Agreementany other person, when executed court, or other entity to such execution, delivery, and delivered by Seller and Purchaser, will constitute the performance is required to render this Agreement a valid and binding agreement of Seller, instrument enforceable against Seller in accordance with its terms subject terms, except for any consents which have been obtained by Seller prior to principles its execution hereof. Neither the execution of bankruptcy and general equitable principlesthis Agreement or the consummation of the transactions contemplated hereby will: (i) result in a breach of, or cause a default or acceleration under, any agreement or mortgage to which Seller is a party (unless such agreement or mortgage is being terminated, released or satisfied at Closing) or by which Seller or the Property is bound, or (ii) violate any orders or restrictions to which Seller or the Property is subject.
(iiif) There are no actionsNo bankruptcy, suitsinsolvency, claimsreorganization, assessmentsliquidation, arrangement, or proceedings moratorium proceeding or allegation of fraudulent conveyance is now pending or, to Seller’s 's knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or against Seller’s ability to perform hereunder.
(ivg) Except Seller, and to Seller's knowledge, each person or entity owning an interest in Seller, is (i) not a, and is not acting directly or indirectly for Permitted Encumbrances or on behalf of any, person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specifically Designated National and Blocked Persons,” or other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("OFAC") and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, (ii) not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person, group, entity, or nation and (iii) not an "Embargoed Person." To Seller's knowledge, none of the funds or other assets of Seller constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed Person (as may be reflected on hereinafter defined), and to Seller's knowledge, no Embargoed Person has any interest of any nature whatsoever in Seller (whether directly or indirectly). The term "Embargoed Person" means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the Closing Statement International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., the Trading with respect to Proration Itemsthe Enemy Act, all bills 50 U.S.C. App. 1 et seq., and other payments due and payable before the Closing Date with respect any Executive Orders or regulations promulgated thereunder. Exceptions to the ownership, operation, representations and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
warranties in this Section 6 (vif any) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise are hereby disclosed to Purchaser in writingExhibit “G”, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, attached hereto and made a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaserpart hereof. The Organizational Documents are representations and warranties contained in full force and effect and, except to the extent approved by Purchaser, this Section 6 shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at survive the Closing for a period of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documentssix (6) months.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents makes the following representations and warrants warranties to Purchaser that:
(i) Seller Purchaser, each and each Applicable Entity is duly organized, validly existing all of which shall be true and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (correct as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances date hereof and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.:
(v) The rent roll A. That attached hereto as Schedule 6(a)(v) is a Exhibit B-1 through Exhibit B-4, are true, correct and complete listing inventories of all LeasesPersonal Property except any owned by a Tenant.
B. That all service, maintenance, or other contracts of any nature to which Seller is a party in connection with the Property, are set forth on Exhibit C-1 through Exhibit C-4, attached hereto (the “Contracts”). Seller has provided Purchaser with true, correct and complete copies of all Tenants thereunder, as such Contracts. Seller is not in default under any of the date Contracts and, to Seller’s actual knowledge, no contractor or provider under any Contract is in default thereunder.
C. That there are no tenancies or other rights of occupancy at the Property, except for the Leases more particularly described on the rent rollroll for each Building attached hereto as Exhibit D-1 through Exhibit D-4, respectively (the “Rent Rolls”). The Rent Rolls are true, correct and otherwise accurately reflects, complete in all material respects. The Leases described thereon are referred to herein as the “Leases” and the tenants under the Leases are referred to herein as the “Tenants”. The Tenants have paid no rent or any other sum in advance for more than the current month and except as shown on Exhibit D-1 through Exhibit D-4 or on attached Schedule 7C, the subject matter thereof as all tenant allowances and reimbursements have been paid in full, and there are no monetary defaults existing under any of the date Leases. To the best of Seller’s knowledge, except as shown on Exhibit D-1 through Exhibit D-4 or on attached Schedule 7C, no Tenant is in default under any other provisions of the rent rollLeases, and no Tenant has asserted any claim, offset or defense with respect to its Lease. The Leases are in full force and effect, enforceable in accordance with their terms, to the best of Seller’s knowledge, there has been no default by the landlord under the Leases, and the landlord has performed all construction and inducement obligations required of it under the Leases. Seller has delivered or made available to provided Purchaser true, correct and complete copies of all each of the Leases. The landlord is not required to render any services to the Tenants except as specifically provided in the Leases, and the Leases represent the complete agreement between Seller and all amendments thereto the Tenants. No person has any option, right of first refusal or modifications thereofother right to acquire title to the Property or any interest therein other than Purchaser.
D. Except as disclosed on Schedule 7D, there is no pending or to Seller’s actual knowledge, threatened litigation, proceeding, or investigation against Seller which would materially affect Seller, this Agreement or the Property.
E. That, to the best of Seller’s knowledge, all parties with whom Seller has contractual arrangements are in compliance therewith and are not in default under any contract or obligation relating to the Property.
F. That all actions required by law and any agreement of Seller or the persons collectively constituting Seller hereunder have been taken or will be taken prior to the Closing Date to authorize the sale hereunder.
G. That (vii) Schedule 6(a)(vi) is no Seller, or constituent member or affiliate of Seller, has filed a truepetition in bankruptcy or for reorganization pursuant to the Federal Bankruptcy Code or any similar Federal, correct and complete listing state or municipal law, or been adjudicated a bankrupt, or consented to the appointment of a receiver or receivers of all License Agreementsor any substantial portion of its assets, (ii) to Seller’s actual knowledge, no creditor of any Seller has filed a petition in bankruptcy against any Seller or for reorganization of any Seller pursuant to the Federal Bankruptcy Code or any similar Federal, state or municipal law, and (iii) no Seller has been declared insolvent, or seized, by any Federal or state regulatory agency.
H. That Seller is not a “foreign person” as defined by Internal Revenue Code Section 1445.
I. Seller has no knowledge of, nor has Seller received any notice from the property owners’ association under the CCRs (as hereinafter defined) regarding any violation of any covenants or restrictions encumbering the Property or any defect that would materially adversely affect the insurability of the Property or cause an increase in insurance premiums. Seller has no actual knowledge of, and it has received no written notice of, (i) notice from a governmental agency requiring repairs, alterations or corrections of any existing condition on the Property, or (ii) any pending or threatened proceedings for condemnation or the exercise of the right of eminent domain as to any part of the Property.
J. To Seller’s actual knowledge, a valid and permanent certificate of occupancy has been obtained for all Licensees thereunderimprovements at each Property. Seller has no actual knowledge of, nor has it received written notification from any governmental authority, with respect to any violation of zoning, building or other laws, ordinances, orders or regulations, relating to the continued maintenance, operation or use of the Property.
K. Seller has no actual knowledge and has received no written notice of any violation of Environmental Laws related to the Property or the presence or release of Hazardous Materials on or from the Property except as stated in the Phase I Environmental Report(s) described in Schedule 7K attached hereto (the “Environmental Reports”) and delivered to Purchaser as part of the Property Information. To the best of Seller’s knowledge, Seller has not manufactured, introduced, released or discharged from or onto the Property any Hazardous Materials or any toxic wastes, substances or materials (including, without limitation, asbestos), and Seller has not used the Property or any part thereof for the generation, treatment, storage, handling or disposal of any Hazardous Materials, in violation of any Environmental Laws. The term “Environmental Laws” includes without limitation the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act and other federal laws governing the environment as in effect on the date of this Agreement together with their implementing regulations and guidelines as of the date of this Agreement, and all state, regional, county, municipal and other local laws, regulations and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials. The term “Hazardous Materials” includes petroleum, including crude oil or any fraction thereof, natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas or such synthetic gas), asbestos and otherwise accurately reflectsasbestos containing materials and any substance, material waste, pollutant or contaminant listed or defined as hazardous or toxic under any Environmental Law. To Seller’s knowledge and except as disclosed in the Environmental Reports, there are not now, nor have there been, any above-ground or underground storage tanks located on the Property.
L. Each Seller has been duly formed, is validly existing, and is in good standing as a Virginia limited liability company. Each Seller is in good standing and is qualified to do business in the state where the Property is located. Each Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.
M. Intentionally Deleted.
N. Seller’s sale of the Property is not subject to any federal, state, or local withholding obligation of Purchaser under the tax laws applicable to Seller or the Property.
O. Neither Seller nor any of its affiliates (i) is listed on any Government Lists, (ii) has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive Order No. 13244 (September 23, 2001) or in any enabling or implementing legislation or other Presidential Executive Orders in respect thereof, (iii) is a person or entity who has been previously indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any violation of the Patriot Act, or (iv) is currently under investigation by any governmental authority for alleged criminal activity. Seller has no reason to believe that this transaction, including, without limitation, the source of its funds, would result in a violation by Purchaser or Seller of the Patriot Act, OFAC Laws and Regulations, or any other anti-terrorism or anti-money laundering laws or regulations, including, without limitation, the Bank Secrecy Act, as amended, or the Money Laundering Control Act of 1986, as amended.
P. All of the Leases and the Rent Roll and, to Seller’s actual knowledge, all of the other Property Information and any other documents, reports and other information related to the Property provided to Purchaser by Seller constitute complete originals or copies of the information provided and constitute the documents on which Seller relies in the ordinary course of its business. Seller shall promptly update and supplement Buyer with any updated or supplemental Property Information received by Seller after the date first delivered or made available hereunder.
Q. The Operating Statements to be delivered to Purchaser pursuant to this Agreement will show all items of income and expense (operating and capital) incurred in connection with Seller’s ownership, operation, and management of the Property for the periods indicated and will be true, correct, and complete in all material respects, and represent the subject matter thereof as of the date thereof. material financial information on which Seller has delivered or made available to Purchaser truerelied in its operation, correct management and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification ownership of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Agreement of Sale (Asset Capital Corporation, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, Buyer as of the date of hereof that:
a. The Hartford Fire Insurance Company (the rent roll"Tenant") is the sole tenant at the Premises, and otherwise accurately reflectsoccupies same pursuant to a written lease dated November 15, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder1996, as of the date thereofamended pursuant to a first amendment dated July 2, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents 1997 (collectively, the “Organizational Documents”"Lease"), a true copy of which Lease is annexed herein as Exhibit 4.1
(a) The parties acknowledge that the Tenant has referenced in a prior estoppel certificate a December 30, 1996 letter as amending the Lease which Seller has been unable to obtain a copy of and as to which Seller makes no representation. Buyer shall have been the right to terminate this Agreement and receive a refund of the Deposit together with accrued interest thereon hereunder as its sole remedy if said letter modifies the Lease in a materially adverse manner, as determined by the Buyer in its discretion, provided notice of such termination is given to Purchaser. Seller no later than Five (5) Days following Buyer's receipt of a copy thereof but in no case later than the date of Closing.
b. Seller has no knowledge of any individual or entity being in possession of or occupying any portion of the Premises except the Tenant, pursuant to the Lease (although Seller makes no representation as to any parties occupying same by or through the Tenant).
c. The Organizational Documents rents set forth in the Lease are currently being charged and collected for the periods set forth in the Lease.
d. The Lease is in full force and effect andwithout modification.
e. Seller has received no security deposit from Tenant under the Lease.
f. Seller has not granted, except nor does Seller have any actual knowledge of, any option agreements or rights of first refusal with respect to the extent approved by Purchaser, shall not be amended, modified, supplemented purchase of the Premises or assigned prior any other unexpired rights in favor of third persons to Closingpurchase or otherwise acquire the Premises or any portion of the Premises or any interest in the Premises or any interest in Seller and no third persons will obtain such right or option as a result of the execution of this Agreement on account of any agreement to which Seller is a party or of which Seller has actual knowledge.
(xi) Other g. Intentionally left blank.
h. Tenant is not more than 30 days in arrears with respect to the Equity Interestspayment of rent.
i. There are no leasing commissions due or to become due with respect to any lease or renewal thereof, neither including but not limited to the Lease, to which Seller nor any other party has equity interests is a party.
j. No written notice of default or rights to acquire equity interests in any Applicable Entity. None breach on the part of the Applicable Entities havelandlord under any lease, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title including but not limited to the Equity InterestsLease, free has been received by Seller or its agents or attorneys from any tenant, individual or entity, including but not limited to the Tenant which remains outstanding and clear uncured (except that Buyer acknowledges Seller has advised Buyer of any encumbrancesTenant's initial claim that Seller was obligated to make certain repairs to the Premises as more particularly set forth in a letter dated July 10, except for any encumbrances imposed under 2007 from Grubb & Ellis on behaxx xx Texxxx to Seller and the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except Tenant's undertaking in connection therewith as set forth in the Organizational Documents or in letter from Grubb & Ellis dated Nxxxxxer 00, 0007).
k. Seller has received no actual notice that there are currently any residential tenants occupying any portion of the existing loan documents listed on Schedule 6(a)(xiv) (Premises.
l. Seller has not entered into any oral agreements or service and maintenance agreements with respect to the “Existing Loan Documents”) which Premises that will not be paid off on or prior to Closing, binding upon the Buyer as a successor to Seller’s knowledge (A) the Equity Interests 's ownership interest therein and there are not subject to any arrangement restricting no other contracts or otherwise other obligations relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under Premises which will be applicable after Closing to which Seller or any is a party other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) than those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present Lease and as of record may appear.
m. Seller has no knowledge of Jun Sakumotoany action, suit, proceeding, litigation or known investigation pending which may materially adversely affect the Premises or the Seller, and Seller does not have knowledge of any threatened or pending governmental investigation involving Seller or any of its products or services, including inquiries, citations, or complaints by any Federal, State or local governmental or administrative body or the Premises.
n. Seller has not commenced any tax reduction proceedings with respect to all or any portion of the Premises and (although Seller makes no representation as to any actions of the Tenant including, without regard to limitation, any imputedtax appeals filed by Tenant, implied or constructive knowledge, without independent inquiry or duty which Seller has not received written notice of investigation of such person or any other officer, director, partner and/or member of Sellerfrom the Tenant).
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (GTJ REIT, Inc.)
Seller’s Representations and Warranties. In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Property from Seller, Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer which shall be true as of the Effective Date:
(iA) Seller and each Applicable Entity is duly organized, validly existing a limited liability company organized and in good standing under the laws of its jurisdiction the State of formationDelaware and is qualified to conduct business in the State of Maryland.
(iiB) Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase transactions contemplated hereby, and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesexcept as otherwise expressly set forth herein.
(iiiC) There are is no actions, suits, claims, assessments, agreement to which Seller is a party or proceedings pending or, to Seller’s knowledgeActual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(D) To Seller’s Actual Knowledge, threatened except as disclosed on Schedule 2 attached hereto, Seller has received no written notice from any governmental agency in the last 12 months that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(E) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to the Property.
(F) To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed and is continuing against Seller that arises out of the ownership of the Property and would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities Property or the Property use thereof, or Seller’s ability to perform hereunder.
(ivG) Except for Permitted Encumbrances and Seller is not a foreign person (as may be reflected on defined in Section 1445 of the Closing Statement with respect to Proration ItemsInternal Revenue Code of 1986, all bills and other payments due and payable before the Closing Date with respect to the ownership, operationas amended, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Dateregulations promulgated thereunder).
(vH) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing To the best of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writingSeller’s Actual Knowledge, neither Seller nor any Applicable Entity has received any written notice of violation (its respective affiliates or to the extent receivedconstituents, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders brokers or other equity owners, nor agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (Ba) conducting any of their respective employees, officers, directors, representatives business or agents is, nor will they become, a engaging in any transaction or dealing with any person or entity with whom appearing on the U.S. persons or entities are restricted from doing business under regulations of the Treasury Department’s Office of Foreign Asset Assets Control (“OFAC”) list of restrictions and prohibited persons (“Prohibited Person”) (which lists can be accessed at the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statutefollowing web address: xxxx://xxx.xxxxxxx.xxx/offices/enforcement/ofac/), executive order (including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, Executive Order relating to “Blocking Property and Prohibiting Transactions with With Persons Who Commit, Threaten to Commit, or Support Terrorism), ”; or other governmental action and is not and will not (c) engaging in or conspiring to engage in any dealings transaction that evades or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities haveavoids, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner purpose of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws evading or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sellavoiding, or giving any individual or entity a right attempting to acquire, or in any way dispose ofviolate, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) prohibitions set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at ClosingU.S. anti-money laundering law.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, continued accuracy in all material respects, the subject matter thereof as respects of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct aforesaid representations and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) warranties is a true, condition precedent to Buyer’s obligation to close. If any of said representations and warranties are not correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, respects at the subject matter thereof time the same is made or as of Closing and Seller had no knowledge of such inaccuracy when the date thereof. Seller has delivered representation or warranty was made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or when deemed remade at Closing) or if such warranty or representation becomes inaccurate on or prior to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any Closing other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination than by reason of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledgedefault hereunder, Buyer may, within five (A5) Business Days upon being notified in writing by any Seller of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off occurrence on or prior to Closing, but in all events no later than the Closing Date, either: (a) terminate this Agreement and Escrow pursuant to the provisions of Section 8.5(a) hereof; or (b) waive such matter and proceed to Closing, subject to the matters which caused the representations and warranties not to be true in all material respects and, in such a case, such representations and warranties shall be automatically modified to such extent and no Seller shall have any further obligations or liability in connection therewith either prior to or following Closing. If any of said representations and warranties are not correct in all material respects at the time the same is made or as of Closing, and Seller had knowledge of such inaccuracy when the representation or warranty was made, or, by its default hereunder caused the representation or warranty to be inaccurate when deemed remade at Closing, Buyer may, within five (5) Business Days upon being notified in writing by any Seller of such occurrence, but in all events no later than the Closing Date, either: (i) terminate this Agreement pursuant to the provisions of Section 8.6(a) (subject to Seller’s knowledge notice and cure rights thereunder); or (Aii) waive the Equity Interests are not breach and proceed to Closing, subject to any arrangement restricting or otherwise relating the matters which caused the representations and warranties not to the votingbe true in all material respects and, dividend rights or disposition of the Equity Interestsin such a case, such representations and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated warranties shall be automatically modified to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, such extent and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities Seller shall have no liabilities, any further obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations liability in connection with therewith either prior to or following Closing. Without limiting the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are foregoing, Seller may, at any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated time prior to Closing, deliver to Buyer an updated Rent Roll and/or recertification, correction and/or update of any of Seller’s representations and the unrestricted right warranties as set forth in Article 9 of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a truethis Agreement, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete together with copies of all Regulatory Agreements documents, agreements, items or instruments relating thereto. Upon receipt of any such update, recertification and/or correction of Seller’s representations and all amendments thereto warranties and related documents, agreements, items or modifications thereof.
(xviii) As used instruments, Buyer shall have the rights set forth in this Section 9.18 hereof. Notwithstanding anything to the contrary as contained in this Agreement, if Buyer proceeds to Closing with actual knowledge of any untruth, inaccuracy or breach of any warranty or representation as set forth in Article 9 of this Agreement, Buyer is deemed to have waived any claims with respect to each such warranty or representation. Upon the Closing and subject to the terms and limitations set forth in this Agreement, each respective Seller shall reimburse Buyer’s damages arising out of any untruth, inaccuracy or breach of any warranty or representation of such Seller under this Article 9; provided, however, that no Seller shall have any liability for the breach of any representation or warranty unless: (i) the valid claims for all such breaches are collectively more than One Hundred Thousand Dollars ($100,000.00), in the aggregate (the “Floor”); (ii) written notice containing a description of the specific nature of such breach shall have been given by Buyer to such Seller after the Closing Date and prior to the expiration of the Survival Period (or the Extended Survival Period, as applicable to the representations and warranties set forth in Sections 9.1, 9.2, and 9.15 hereof); and (iii) the maximum aggregate liability of each Seller as a result of the breach by such Seller of any representation or warranty of such Seller as set forth in this Article 9 shall not exceed one and one-half percent (1.5%) of the Purchase Price allocated to the Improved Parcel owned by such Seller as provided for in the Purchase Price Allocation, in the aggregate (the “Cap”). Notwithstanding the foregoing, the Floor and Cap limitations described in this Section 9.18 shall be subject to the following exclusions (collectively, the “Exclusions”):
(a) The Floor and Cap shall not apply to, and the provisions of Section 9.18 above shall in no way limit Seller’s knowledge” shall mean liability in connection with, any breach by Seller of the actual present knowledge of Jun Sakumotorepresentations and warranties set forth in Sections 9.1, without regard to any imputed9.2, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Sellerand 9.15 hereof.
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) [Reserved].
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and --------------------------------------- warrants to Purchaser thatthat as of the date hereof, and as of the Closing:
(A) Seller is a limited partnership, duly organized and validly existing under the laws of the State of Texas and is duly qualified to do business and is in good standing with the governmental agencies having jurisdiction over the Assets;
(B) Seller has the requisite power and authority to enter into this Agreement, to carry out the transactions contemplated hereby, to transfer the Assets in the manner contemplated by this Agreement, and to undertake all of the obligations of Seller set forth in this Agreement;
(C) This Agreement and any documents or instruments delivered by Seller at the Closing shall constitute legal, valid and binding obligations of Seller, enforceable in accordance with their terms;
(D) Seller has good and marketable title to the Related Assets and to the best of Seller's knowledge, the copies of the Leases provided to Buyer are true, correct and complete and Seller is not in material default under any of the Lease(s) to cause them not to be in full force and effect;
(E) To the best of Seller's knowledge, the production data and computer printouts or other data or documentation furnished by Seller to Buyer, and any supplement thereto, is complete and the information reported therein is correct, in all material respects, as of the date of such delivery, except that no representation or warranty is made as to interpretive data included therein or derived therefrom. From the date of this Agreement until the Closing Date, should Seller become aware of any material change in the matters reflected in such data and documentation theretofore furnished by Seller to Buyer, Seller shall promptly notify Buyer of such change;
(F) Except for the firm of Xxxxxx Xxxxxxx & Co., Seller has incurred no obligation or liability, contingent or otherwise, for brokers' or finders' fees in respect of the matters provided for in this Agreement, and, any such obligation or liability that exists shall remain an obligation of Seller, and Buyer shall have no responsibility therefor;
(G) To the best of Seller's knowledge, with respect to the Oil and Gas and Leases and Contracts: (i) Seller has fulfilled all material requirements for filings, certificates, disclosures of parties in interest, and other similar matters contained in (or otherwise applicable thereto by law, rule or regulation) the Leases and Contracts in all material respects and is fully qualified to own and hold the Assets; (ii) there are no express obligations to engage in continuous development operations in order to maintain any Lease; (iii) there are no provisions applicable to such Leases or other documents which increase the royalty share of the lessor thereunder except as such increases are reflected in the Leases; and (iv) each Applicable Entity of the foregoing are valid and subsisting and all rental payments, royalty payments, shut-in payments, or other payments or commitments required thereunder have been made and are current to date, and no material default exists with regard thereto;
(H) With respect to the joint, unit or other operating agreements relating to the Assets, to the best of Seller's knowledge: (i) there are no outstanding calls or payments under authorities for expenditures for payments which are due or which Seller has committed to make which have not been made; (ii) Seller has informed Buyer of the status of all operations by less than all parties; and (iii) there are no operations under the operating agreements with respect to which Seller has become a non- consenting party;
(I) Seller has not entered into any contracts for or received prepayments, take-or-pay arrangements, buydowns, buyouts for Oil and Gas, storage of the same, or other balancing arrangements which Buyer will be obligated to honor and make deliveries of Oil and Gas or refunds of amounts previously made under such contracts or arrangements;
(J) To the best of Seller's knowledge, (i) all of the Xxxxx have been drilled and completed at legal locations within the boundaries of the appropriate Lease and (ii) all drilling and completion of the Xxxxx and all development and operations of the Assets have been conducted in all material respects in compliance with all applicable laws, ordinances, rules, regulations, permits, and judgments, orders and decrees of any court or governmental body or agency, including but not limited to Environmental Laws. To the best of Seller's knowledge, no Well is subject to penalties on allowables after the date hereof because of any overproduction or violation of applicable laws, rules, regulations, permits or judgments, orders or decrees of any court or governmental body or agency which would prevent such Well from being entitled to its full legal and regular allowance from and after the date hereof as prescribed by any court or governmental body or agency;
(K) To the best of Seller's knowledge, all personal property and fixtures to be conveyed pursuant to this Agreement, including, but not limited to, the Related Assets, have been maintained in all respects in a state of repair so as to be adequate for normal operations and are in all respects in good working order, ordinary wear and tear excepted;
(L) Except for the litigation styled South Dauphin II, Limited Partnership v. M-I Drilling Fluids, LLC, 98-12265, 000xx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Texas, the benefits and obligations of which will be retained by Seller, there is no suit, or, to the best of Seller's knowledge, action, claim, investigation or inquiry pending or threatened arising out of or with respect to the ownership, operation or environmental condition of the Assets.
(M) Seller is not aware of any facts relating to the condition of the Assets which may result in a suit, action, claim, investigation or inquiry with respect to Environmental Laws or regulations or other legal requirements thereunder. To the best of Seller's knowledge, the Assets have not been used by Seller to generate, treat, transport or dispose of any hazardous wastes, hazardous substances or any contaminant in violation of any Environmental Law;
(N) To the best of Seller's knowledge (i) Seller has acquired all permits, licenses, approvals and consents from appropriate governmental bodies, authorities and agencies necessary to conduct operations on the Assets in material compliance with all applicable laws, rules, regulations, ordinances and orders; (ii) Seller is in compliance with all such permits, licenses, approvals and consents and with all applicable Environmental Laws, in all material respects; and (iii) all plans, applications, reports, certificates and other instruments filed with or furnished to any governmental body, authority or agency do not (1) contain any materially untrue statement of fact or (2) omit any statement of fact necessary to make the statements therein not materially misleading. There are no proceedings pending, and to Seller's knowledge, threatened, challenging, or seeking revocation or limitation of any such permits, licenses, approvals and consents;
(O) Except as set forth on Exhibit 8.1(O), to Seller's knowledge, no person shall have any call upon, option to purchase, or similar rights with respect to any portion of the production from the Leases;
(P) To Seller's knowledge, none of the statements, representations or warranties made by Seller in this Agreement or in any Exhibit delivered pursuant to this Agreement contains any untrue statements of any fact or fails to disclose any fact necessary to be disclosed in order to make the statements, representations or warranties contained herein or therein not misleading. Seller has no knowledge of any matter which materially and adversely affects the operations, prospects or condition of any of the Assets which is not already public knowledge or which has not been disclosed to Buyer;
(Q) Except for immaterial obligations incurred by Seller in normal day-to- day operations of the Assets, there are no borrowings, loan agreements, promissory notes, pledges, mortgages, guaranties, liens and similar liabilities (direct and indirect) which are secured by or constitute an encumbrance on the Assets;
(R) Except as set forth on Exhibit 8.1(R), there are no preferential rights providing a third party the option to purchase any of the Assets;
(S) To the best of Seller's knowledge, the gas imbalances reflected on Exhibit 8.1(S) are true and correct; and
(T) Titan Exploration, Inc. is a corporation duly organizedincorporated, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, powerDelaware, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be provide the lawful owner of the Equity Interests, upon transfer to Purchaser guaranty undertakings as provided at the Closing end of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Titan Exploration Inc)
Seller’s Representations and Warranties. Seller Each Seller, with respect to itself, hereby represents and warrants to the Purchaser thatas of the Effective Date and again as of the Closing Date as follows:
(i) i. that such Seller has good and marketable title to their respective Interest, free and clear of any lien, pledge, security interest, claim, option, agreement, encumbrance or other restriction of whatever nature or kind;
ii. that such Seller has not previously transferred any part of their respective Interest sold to Purchaser under the terms of this Agreement;
iii. that such Seller has the full and complete right and power to make the Transfer contemplated by this Agreement;
iv. both the execution and delivery of this Agreement by such Seller and each Applicable Entity by the undersigned signatory on behalf of the Seller, and the performance of all obligations and delivery of all Closing Documents, have been duly and properly authorized by all proper, legal and duly authorized actions;
v. if such Seller is duly organizeda limited liability company or limited partnership, validly existing and such Seller is in good standing under the laws of the State of Ohio, and that each of its jurisdiction nonindividual constituent members or partners, as applicable, is in good standing, and that to the extent that the execution of formation.this Agreement or any actions contemplated hereby must be authorized by such Seller's members or partners, as applicable, such actions have been duly and properly authorized by all proper, legal and duly authorized actions. If such Seller is a limited liability company or limited partnership, such Seller shall order and tender to Purchaser at the Closing, a good standing certificate issued by the Ohio secretary of state to confirm that the Seller is in good standing under the laws of the State of Ohio. The tender of such good standing certificate shall in no way release or excuse a Seller from the representations, warranties and obligations contained in this subsection;
(ii) vi. that as to the Seller who is an individual, such Seller has full right, power, the right and authority power to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of enter into this Agreement, and the consummation by Seller of the transactions contemplated herebyis under no restrictions, have been duly and validly authorized by all necessary action on the part of Seller. This Agreementdisabilities, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms or subject to principles any other condition which would in any way prohibit or restrict that individual Seller from executing this Agreement and performing all of bankruptcy and general equitable principles.that individual Seller's obligations under the terms of this Agreement;
(iii) There are vii. no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) consents from any insurance companiesperson, governmental agencies or authorities or from any other parties related to (A) any conditionsentity, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap lender or other law, code, ordinance, rule third party of whatever nature or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, kind are required in order to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals enter into this Agreement and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of perform all of such Seller's obligations hereunder; and,
viii. the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as Recitals set forth in the Organizational Documents or this Agreement are true and accurate in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingevery respect.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Glimcher Realty Trust)
Seller’s Representations and Warranties. (a) Seller represents makes each of the representations and warrants warranties set forth in Schedule 1 hereto to the Purchaser that:
(i) Seller and each Applicable Entity is duly organizedas of the Closing Date, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking as of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing each Transfer Date with respect to the ownership, operationAssets conveyed on such Transfer Date, and maintenance (iii) as of each date on which an Eligible Mortgage Loan is being substituted in accordance with Section 5 of the Applicable Entities and the Property have been paid or will be paid prior to Custodial Agreement (each, a "Substitution Date").
(b) Seller further makes, as of the Closing Date.
, as of each Transfer Date and as of each Substitution Date, each of the representations and warranties set forth in Schedule 2 hereto. It is understood and agreed that the representations and warranties set forth in this Section 3.01 shall survive delivery of the respective Mortgage Files to the Custodian (vas the agent of the Purchaser and Lender) The rent roll attached hereto as Schedule 6(a)(v) is a trueand shall inure to the benefit of the Purchaser, correct and complete listing of all Leasesthe Servicer, the Custodian, and the Lender. Upon the discovery by the Servicer, the Custodian, the Seller, the Purchaser, or the Lender of a breach of any of the representations and warranties of the Seller set forth in Schedule 1 or 2 hereto that materially and adversely affects the value of any of the Assets, or the interests of the Lender in any Asset, with respect to which such representation or warranty is made, the Seller shall (a) promptly cure such breach in all Tenants thereundermaterial respects, (b) purchase such Mortgage Loan on the next succeeding Payment Date, at the Repurchase Price (as hereinafter defined), or (c) remove such Mortgage Loan from the Owner Trust Estate (as defined in the 2003-2 Trust Agreement) and substitute one or more Eligible Mortgage Loans. Repurchase Price shall mean with respect to any Mortgage Loan, the principal balance of such Mortgage Loan as of the date of re-purchase, plus all accrued and unpaid interest on such principal balance computed, as of the date of re-purchase, at the rent rollMortgage Interest Rate, plus the amount of any unreimbursed Servicing Advances (as defined in the Servicing Agreement) made by the Servicer with respect to such Mortgage Loan, which purchase price shall be deposited in the Collection Account on the next succeeding Determination Date (as defined in the Servicing Agreement), after deducting therefrom any amounts received in respect of such repurchased Mortgage Loan or Loans and otherwise accurately reflects, being held in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or Collection Account for future payment to the extent receivedsuch amounts have not yet been applied to principal or interest on such Mortgage Loan. The obligations of the Seller set forth herein to cure such breach or substitute for or repurchase an affected Asset or, such violation has been cured) from any insurance companiesas the case may be, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect shall constitute the sole remedies available hereunder to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification Purchaser respecting a breach of the zoning classification of the Property.
(viiirepresentations and warranties contained in Section 3.01(a) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (Bb) there are no preemptive hereof or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, Schedules 1 and no securities or obligations evidencing such rights are authorized, issued or outstanding2 hereto.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Business Financial Services Inc /De/)
Seller’s Representations and Warranties. Seller represents and warrants makes the following representations to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Buyer: Seller has full the legal right, power, power and authority to execute and deliver enter into this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or contemplated hereby; the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, Agreement have been duly authorized and validly authorized by all necessary no other action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute is requisite to the valid and binding agreement execution, delivery and performance of this Agreement; Seller has no actual knowledge of any Hazardous Materials on or under the Property or any underground tanks on the Property or of any claims, easements, leases or other liens or encumbrances affecting the Property which are not disclosed by the public records. Buyer acknowledges and agrees that except as set forth herein Seller has made absolutely no representations or warranties regarding the Property, including, without limitation, its condition, its past use, or its suitability for Buyer's intended use, and that Buyer is purchasing the Property on an "as-is" basis. If before the Closing, Seller obtains actual knowledge that any of Seller's representations was materially untrue or misleading as of the Execution Date or is no longer true in any material respect, enforceable against then Seller shall promptly so notify Buyer in accordance with its terms subject writing and Buyer shall have ten (10) days after receipt of such notice (or the Closing Date, whichever is earlier) to principles approve or disapprove such notice. Buyer shall not disapprove Seller's notice unless Buyer reasonably believes that the effect of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, the untrue or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to misleading warranty will materially and adversely affect the ownership, operation, value or maintenance use of the Applicable Entities or the Property or materially impair Buyer's rights or expectations under this Agreement. Buyer's failure to give written notice of disapproval to Seller and Escrow Holder within such period shall be deemed approval and an election to proceed with the purchase (subject to any other conditions in this Agreement) without reduction in the purchase price. If Buyer submits timely notice of disapproval, this Agreement shall be terminated without liability to Seller and Buyer's Deposits shall be refunded to Buyer; provided, however, that Seller shall be liable for any actual damages suffered by Buyer if Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid 's warranty was knowingly untrue or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, misleading as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent rollExecution Date. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “the phrases Seller’s 's "actual knowledge” shall " or "to the best of Seller's actual knowledge" mean the actual present knowledge of Jun Sakumotoonly information in fact known to E. Rex Xxxxx, without regard to any XXI or Vincxxx X. Xxxxxx xxx do not include imputed, implied agency or constructive knowledge. Seller represents that in Seller's good faith opinion E. Rex Xxxxx, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerXXI and Vincxxx X. Xxxxxx xxx the persons in its employment most knowledgeable with respect to the Property.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(i) Seller and each Applicable Entity Buyer the matters set forth on Addendum II, which is duly organized, validly existing and incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and Addendum II, Seller makes no representations or warranties of any kind relating to consummate the purchase Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and sale transactions provided for herein without obtaining warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any further consents such representation or approvals fromwarranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if, prior to the Closing, Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “Seller R&W Breach”), or was true when given on the taking Effective Date but became inaccurate in any material respect after the Effective Date (a “Seller R&W Change”). If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of any other actions with respect tosuch R&W Breach, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by such Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action R&W Breach shall be a default on the part of Seller. This , and Buyer, in its sole discretion, shall have the right, as its sole and exclusive remedies, to (i) terminate this Agreement, when executed upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and delivered if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer within ten (10) Business Days after delivery to Seller of reasonable evidence of the loss sustained by Buyer and a statement of Buyer’s reimbursable expenses, in which case the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Breach and proceed to Closing. If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Change has occurred, such Seller R&W Change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and Purchaserwarranty to become inaccurate in any material respect, will and Seller is unable within ten (10) days after notice from Buyer of such R&W Change to 941120.4 eliminate such inaccuracy, Buyer shall have the right, as its sole and exclusive remedy, to (i) terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Change and proceed to Closing. If, however, such Seller R&W Change was caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and warranty to become inaccurate in any material respect, such Seller R&W Change shall constitute a Seller R&W Breach, and if Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of such Seller R&W Breach, such Seller R&W Breach shall be a default on the valid and binding agreement part of Seller, enforceable against and Buyer, in its sole discretion, shall have the right, as its sole and exclusive remedies, to (i) terminate this Agreement, upon which termination the Xxxxxxx Money (plus interest earned thereon) shall be returned to Buyer, and if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer within ten (10) Business Days after delivery to Seller of reasonable evidence of the loss sustained by Buyer and a statement of Buyer’s reimbursable expenses, in which case the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement, or (ii) waive such Seller R&W Breach and proceed to Closing. If, prior to the Closing, Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Seller shall be liable to Buyer for a breach by Seller of any one or more of the representations and warranties of Seller made herein, only if (i) the breach thereof is first discovered subsequent to Closing, (ii) the claim thereon is asserted by Buyer to Seller in accordance with its terms subject to principles of bankruptcy writing on or before the date one hundred eighty (180) days after Closing, and general equitable principles.
(iii) There are no actionsthe amount of any such loss, suitscost, claimsliability, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially damage and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
expense suffered by Purchaser (iv) Except when aggregated with all other amounts for Permitted Encumbrances and as which Seller may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations liable in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote breaches of its representations, warranties or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements covenants under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement) shall exceed the Material Damage Floor. In no event shall the amount of any such loss, “Seller’s knowledge” cost, liability, damage and expense for which Seller shall mean be liable under this Section 10 (when aggregated with all other damages for which Seller may be liable in connection with breaches of its representations, warranties or covenants under this Agreement) exceed the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of SellerMaterial Damage Ceiling.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(ia) Seller is a duly organized and each Applicable Entity is duly organized, validly existing and limited partnership, is in good standing under in the laws State of its jurisdiction of formation.
(ii) Seller Delaware, and has full right, power, and authority power to execute and deliver enter into this Agreement and to consummate the purchase perform its obligations under this Agreement.
(b) The execution and sale transactions provided for herein without obtaining delivery of this Agreement has been or will be duly authorized by all necessary and appropriate partnership action of Seller.
(c) No consent or approval of any further consents or approvals fromperson, entity, or the taking of any other actions governmental authority is required with respect to, any third parties, other than obtaining or delivering (as applicable) to the Regulatory Approvals. The execution, execution and delivery and performance of this Agreement by Seller of this Agreement, and or the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on hereby or the part of Seller. This Agreement, when executed and delivered performance by Seller and Purchaser, will constitute of its obligations under this Agreement except for such consents as shall be obtained by Seller prior to the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesClosing.
(iiid) There are no actionsSpace Leases affecting all or any portion of the Transferred Property except as set forth in Exhibit “B” to this Agreement, suits, claims, assessments, or proceedings pending or, which Exhibit “B” and copies of the Space Leases containing all material provisions thereof will be delivered to Purchaser within ten (10) days from the Effective Date. To the best of Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance all of the Applicable Entities Space Leases to be described in Exhibit “B” are in full force and effect, and there are no material defaults by any party thereunder, nor any circumstance existing that, but for giving of notice or the Property or Seller’s ability to perform hereunderpassage of time, constitutes a material default.
(ive) Except for Permitted Encumbrances To the best of Seller’s knowledge, there are no Hotel Contracts affecting the Transferred Property except as set forth in Exhibit “C” to this Agreement, which Exhibit “C” and as may copies of the Hotel Contracts containing all material provisions thereof will be reflected on provided to Purchaser within ten (10) days from the Closing Statement with respect Effective Date. All of the Hotel Contracts to Proration Items, all bills be described in Exhibit “C” are in full force and other payments due and payable before the Closing Date with respect to the ownership, operationeffect, and maintenance there are no material defaults by any party thereunder, nor any circumstance existing that, but for giving of the Applicable Entities and the Property have been paid notice or will be paid prior to the Closing Datepassage of time, constitutes a material default.
(vf) The rent roll attached hereto as Schedule 6(a)(v) is a trueTo the best of Seller’s knowledge, correct and complete listing of all Leases, and all Tenants thereunder, as Permits necessary for the operation of the date Hotel are set forth in Exhibit “D” to this Agreement, which Exhibit “D” and copies of the rent roll, and otherwise accurately reflects, in Permits containing all material respects, the subject matter provisions thereof as of the date of the rent roll. Seller has will be delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
within ten (vi10) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of days from the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofEffective Date. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller has received no written notice of any material violations of any Permit.
(g) Except as otherwise disclosed to Purchaser on Exhibit “E” to this Agreement, which will be delivered to Purchaser within ten (10) days from the Effective Date, Seller has received no written notice of material violations of laws, ordinances, orders or regulations (“Laws”) of governmental or quasi-governmental authorities with respect to the Transferred Property (including, without limitation, those related to environmental, zoning, land-use, labor or employment matters).
(h) Except as otherwise set forth on Exhibit “F” to this Agreement, which will be delivered to Purchaser within ten (10) days from the Effective Date, Seller is not currently involved in any litigation or other proceedings which, if, adversely determined, would have a material adverse effect on operation of the Transferred Property, or the financial condition or results of operations of the Transferred Property, nor any Applicable Entity has Seller received any written notice of violation (or to the extent received, that any such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap litigation or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Propertyare to be instituted.
(viiii) Neither Within ten (10) days from the Effective Date, Seller nor any Applicable Entitywill provide to Purchaser (i) all existing copies, norin Seller’s possession or control, of all bills for real estate and personal property taxes and assessments for the current tax year and the two (2) immediately preceding tax years, and (ii) to the best of Seller’s knowledge, (A) any of their respective affiliatesa true and complete list by position only, partnerswithout names, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control current Hotel Employees, together with a schedule setting forth the compensation and fringe benefits (“OFAC”including, but not limited to, benefit plans) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten accorded 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 entitiesHotel Employees.
(ixj) No Applicable Entity has any rightWithin ten (10) days from the Effective Date, title Seller shall deliver to Purchaser financial statements for the Hotel (consisting of un-audited financial statements for the last three (3) years to the extent they have been prepared and are in the Seller’s reasonable control or interest possession) and that, to the best of Seller’s knowledge, all of these financial statements are in any property other than all material respects true and correct and fairly represent the Property financial condition of the Hotel as of the dates stated therein and any Excluded Property Agreementsthere have been no material adverse change in the financial condition of the Hotel since the date of such statements.
(xk) TrueSeller owns good and marketable title to the Consumables, correct Expendables and complete copies of Furnishings (other than those items leased or loaned to Seller as described in Exhibits “B” and “C”) subject only to the current limited liability company agreement or limited partnership agreement Permitted Exceptions.
(as applicablel) of each Applicable Entity, with all amendments and modifications thereto, Other than the agreements disclosed in this Agreement and the current certificate of formation Exhibits to this Agreement, there are no agreements, written or certificate of limited partnership oral, affecting the Transferred Property, which would be binding on Purchaser following the Closing.
(m) Seller is not a “foreign person” as applicabledefined in the Code.
(n) of each Applicable Entity, with all amendments and modifications theretoAll sales taxes (other than those sales taxes, if any, and all company minutes, member or partner consents and other organizational documents (collectively, arising from the “Organizational Documents”) have been provided sale of the Transferred Property from Seller to Purchaser. The Organizational Documents ), hotel/motel occupancy taxes and similar taxes that are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None due as of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred Date in the ordinary course of business consistent with past practice since have been paid in full (or will be provided for at the date Closing pursuant to the provisions of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined Section 7.2 below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunderrequired reports and returns relating thereto have been, as of the date thereofor will be, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereoftimely filed.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Pinnacle Entertainment Inc)
Seller’s Representations and Warranties. Seller expressly represents and warrants to Purchaser that:
(ia) Seller and each Applicable Entity is duly organizedIt has all necessary legal capacity, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute enter into, execute, deliver, and deliver be bound by this Agreement and to consummate that the purchase execution and sale transactions provided for herein without obtaining any further consents or approvals from, or delivery of this Agreement and the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of Seller’s obligations under this Agreement, do not breach, and shall not result in a breach or violation of, any agreement to which Seller is a party or by which Seller is bound.
(b) Seller is the owner of all or has the right to (i) license Buyer the rights to use the ChromaDex Trademarks and NR Trade Secrets as specifically set forth in this Agreement, and (ii) grant Buyer the consummation rights to develop, manufacture, and sell the Approved Products using the patents listed in Exhibit F on the terms set forth in this Agreement;
(c) All patents that are necessary for Buyer to use the NR Product to be supplied to Buyer in the development, manufacture, promotion, importation, marketing, distribution and sale of Approved Products are set forth in Exhibit F;
(d) Seller has not received any notice regarding the NR Product, including written notice, alleging any infringement by Seller of any intellectual property rights of a third party;
(e) To the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part best of Seller’s knowledge after due diligence and reasonable investigation, neither Seller, its Affiliates or any person employed thereby directly in the performance of Seller’s obligations under this Agreement has been debarred under Section 306(a) or (b) of the Federal Food, Drug and Cosmetic Act, and no debarred person will in the future by employed by Seller. This If, at any time after execution of this Agreement, when executed and delivered Seller becomes aware that Seller, any of its Affiliates or any person employed thereby is, or is in the process of being, debarred, Seller will so notify NHSc immediately.
(f) No NR Product at the time of shipment by Seller will be adulterated or misbranded within the meaning of the Federal Food, Drug and PurchaserCosmetic Act, as amended from time to time, or regulations promulgated thereunder, as such law or regulation is constituted and in effect at the time of any such shipment and no NR Product at the time of shipment will constitute be considered to be an article that may not, under the valid provisions of §§ 404, 505 or 512 of the Federal Food, Drug and binding agreement Cosmetic Act, be introduced into interstate commerce.
(g) All NR Product at the time furnished to Buyer and for the full period of the expected shelf life of such products will be in full compliance with the Specifications, the quality standards set forth in Exhibit G – Quality Standards (the “Quality Standards”) (Exhibit G is hereby incorporated herein in full by this reference), applicable Law and other requirements of this Agreement as long as Buyer’s errors, acts, omissions, or other conduct do not cause directly or indirectly the NR Product to become out of compliance with the Specifications, fail to meet the Quality Standards or violate applicable law and other requirements of this Agreement.
(h) Seller’s manufacturing, enforceable against Seller laboratory, and packaging facilities are and will at all times remain in material compliance with Good Manufacturing Practices, including but not limited to those set forth in 21 C.F.R. § 110 et seq., to the extent applicable to the manufacture and packaging of the NR Product, and all NR Product furnished to Buyer will be manufactured in accordance with its terms subject to principles of bankruptcy and general equitable principlesGood Manufacturing Practices.
(iiii) There are All NR Product at the time furnished to Buyer will not have been damaged during storage and handling and will otherwise be wholesome, fit for human consumption, and in first-class merchantable condition.
(j) Seller has and will maintain during the Term the necessary expertise, equipment, personnel, facilities, equipment and inventory of raw materials and finished product to supply the NR Products as agreed upon in all Purchase Orders accepted by Seller (unless Seller is unable to due to a Force Majeure Event).
(k) Except as otherwise advised by Seller in writing to Buyer on or prior to the Effective Date, there is no actionsdemand, suitsclaim, claimssuit, assessmentsaction, arbitration, and/or other proceeding, whether pending or proceedings pending orthreatened (and for which any basis exists), to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, jeopardizes (or maintenance of the Applicable Entities or the Property or could jeopardize) Seller’s ability to enter into this Agreement or perform any of its obligations hereunder.
(ivl) Except for Permitted Encumbrances It will at all times during the Term comply with all applicable laws, rules, orders, guidelines and as may be reflected on regulations, including the Closing Statement with respect to Proration Itemsones regarding the following matters: anticorruption, all bills immigration, antidiscrimination, tax, environment, data protection, food safety and other payments due and payable before the Closing Date with respect to the ownership, operationquality, and maintenance of the Applicable Entities export control, import, customs and the Property have been paid or will be paid prior to the Closing Dateeconomic sanctions.
(vm) The rent roll attached hereto as Schedule 6(a)(v) Have a quality management system in accordance with Nestlé’s reasonable requirements of which Seller is a true, correct advised of and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, agrees to in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser advance in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Supply Agreement (ChromaDex Corp.)
Seller’s Representations and Warranties. Except as set forth in the Disclosure Letter delivered by Seller to Buyer (the “Seller Disclosure Letter”), Seller hereby represents and warrants to Purchaser thatBuyer as follows:
(ia) Seller As of the date of this Agreement, UPB is the sole record and each Applicable Entity is duly organizedbeneficial owner and holder of 50,000 shares of Common Stock, validly existing free and in good standing under clear of all Liens. Upon the laws effectiveness of its jurisdiction the Formation Transactions and as of formationClosing, UPB shall be the sole record and beneficial owner and holder of the Purchased Shares, free and clear of all Liens. Upon consummation of the transactions contemplated hereby, Buyer will acquire valid title to the Purchased Shares, free and clear of all Liens.
(iib) Seller has the full right, power, power and authority and has taken all action necessary in order to execute execute, deliver and deliver perform fully, its obligations under this Agreement and the Ancillary Agreements to which it is a party and to consummate the purchase transactions contemplated hereby and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvalsthereby. The execution, execution and delivery and performance by Seller of this AgreementAgreement and each of the Ancillary Agreements to which Seller is a party, and the consummation by Seller of the transactions contemplated herebyhereby and thereby, have been duly authorized and validly authorized by all approved and no other corporate proceeding with respect to Seller is necessary action on to authorize this Agreement, such Ancillary Agreements or the part of Sellertransactions contemplated hereby or thereby. This Agreement, when Agreement has been duly executed and delivered by Seller and Purchaser, will constitute the constitutes a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms except to the extent that the enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and subject to general principles of bankruptcy equity and general except that the availability of the equitable principlesremedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought. Except for the Persons set forth in Section 4.1(b) of the Seller Disclosure Letter, whose fees, if any, shall be paid by Seller, no agent, broker, investment banker, intermediary, finder, Person or firm acting on behalf of Seller or the Company or which has been retained by or is authorized to act on behalf of Seller or the Company is or would be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, from Seller or the Company in connection with the execution of this Agreement or the Ancillary Agreements or upon consummation of the transactions contemplated hereby or thereby.
(c) Assuming the making of the HSR Filing and the other Filings set forth in Sections 3.4 of the Company Disclosure Letter and the obtaining of the Consents set forth in Sections 3.4 and 3.5 of the Company Disclosure Letter, and Section 4.1(c) of the Seller Disclosure Letter, the execution and delivery by Seller of this Agreement and the Ancillary Agreements to which it is a party does not, and the performance and consummation by Seller of any of the transactions contemplated hereby or thereby will not, with respect to Seller, directly or indirectly (with or without the giving of notice or the lapse of time or both) constitute, result in or give rise to:
(i) a breach or violation of, or a default under any provision of Seller’s Organizational Documents;
(ii) a material breach or material violation of, or a material default under any material Contract of Seller; or
(iii) a material breach or material violation of any Law or Order to which Seller is subject.
(d) UPB is an “accredited investor” as defined under Rule 501 of Regulation D promulgated under the Securities Act, and is acquiring, if issued, the Earn-Out Shares, for investment purposes and not with a view to distribution that would be in violation of the Securities Act. By reason of its business and financial experience, UPB has such knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of the prospective investment, is able to bear the economic risk of such investment and is able to afford a complete loss of such investment.
(e) There are no actionsActions or Orders issued, suits, claims, assessments, or proceedings pending or, to the knowledge of Seller’s knowledge, threatened against Seller or any of its assets that would reasonably be expected to materially and adversely affect question or challenge the ownership, operationvalidity or legality of, or maintenance have the effect of prohibiting, preventing, restraining, restricting, delaying, making illegal or otherwise interfering with, this Agreement, any Ancillary Agreement to which Seller is a party, the consummation of the Applicable Entities transactions contemplated hereby or thereby or any action taken or proposed to be taken by Seller pursuant hereto or in connection with the Property transactions contemplated hereby or Seller’s ability to perform hereunderthereby.
(ivf) Except for Permitted Encumbrances Seller and as may be reflected on the Closing Statement with respect its Representatives have had a full and satisfactory opportunity to Proration Items, obtain and review all bills financial and other payments due information which Seller and payable before its Representatives have deemed necessary to evaluate Holdco and its Subsidiaries, their financial condition, business prospects and the Closing Date with respect to transactions contemplated by this Agreement and the ownershipAncillary Agreements. Seller has made its own independent evaluation of the value of Holdco and its Subsidiaries, operationtheir Purchased Shares and the Earn-Out Shares, and maintenance is not relying on any representation by the Company or any of the Applicable Entities its Representatives in determining whether to enter into this Agreement and the Property have Ancillary Agreements and consummate the transactions contemplated hereby and thereby. Seller acknowledges and agrees that the consideration has been paid or will be paid prior to negotiated at arms’ length and that Seller is obtaining a fair and equitable price for the Closing DatePurchased Shares.
(vg) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as As of the date of the rent roll, Closing and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or after giving effect to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs thereforFormation Transactions, (Bi) any violation there are issued and outstanding 300,000 shares of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification Holdco Common Stock and 300,000 shares of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledgeHoldco Preferred Stock, (Aii) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) TrueHoldco Preferred Stock held by Seller, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and there are no other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests of Holdco or rights to acquire any instrument convertible into any equity interests in any Applicable Entity. None interest of Holdco issued and outstanding; (iii) the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are Purchased Shares shall be duly authorized, validly issued, fully paid and nonassessable, but are not certificatedand shall have been issued in compliance with all federal and state securities laws; and (iv) Holdco shall have no outstanding options or other securities exercisable for or convertible into any shares of capital stock of Holdco or other equity interests or bonds, debentures, notes or other obligations the holders of which have (either presently or upon the occurrence of a contingency) the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of Holdco on any matter.
(xiiih) Assuming that Purchaser has Holdco was formed solely for the requisite power and authority to be the lawful owner purpose of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth engaging in the Organizational Documents or transactions contemplated by this Agreement and has not engaged in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on business activities, conducted any operations or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to incurred any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or Liabilities other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations than in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into transactions contemplated by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants the following to Purchaser thatbe true and accurate, as of both the Effective Date and the Closing Date:
(ia) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance Performance by Seller of this AgreementObligations. Seller has kept, observed and performed all of the consummation material obligations to be performed by Seller of as landlord under the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of owner under the date of Contracts. Seller has not entered into any written or oral Contract affecting the rent roll, and otherwise accurately reflects, Property that has not been performed in all material respectsrespects by Seller. All individual repair or maintenance work orders for individual Tenants under written agreements made by Seller with the Tenants (other than their respective Leases) and all tenant improvement costs in connection with the Leases, which are identified under the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto have not yet been paid whether such obligations are past due, are currently payable, or modifications thereof.
are payable in the future as direct reimbursement or pursuant to any other monetary arrangement, including but not limited to, credits against rent or percentage rent explicitly in lieu of such direct reimbursement for tenant improvements, are set forth in Exhibit H attached hereto (vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof"Assumed Tenant Improvement Costs"). Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or Notwithstanding anything to the extent receivedcontrary contained herein, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related Buyer shall be entitled to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of credit against the Purchase Price, Purchaser will acquire or a post-closing adjustment provided same is asserted prior to the Equity Interests, free and clear end of the Survival Period (defined below) for any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth Assumed Tenant Improvement Costs contained in the Organizational Documents Leases regardless of whether same are identified in Exhibit H or in any are unknown at the time of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will Closing and not otherwise credited at Closing; provided, however that Buyer shall not be paid off on or prior entitled to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) credit with respect to any existing loans evidenced, secured or governed by leases entered into after the Existing Loan Documents, (B) those Effective Date of this Agreement to which are adequately reflected and reserved against Buyer has consented in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection accordance with the Regulatory Agreements (as defined belowprovisions of Section 9.1(f) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)hereof.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chelsea Property Group Inc)
Seller’s Representations and Warranties. Seller hereby warrants, represents and warrants to Purchaser that:agrees that the provisions set out in this Section 7 are materially true and correct as of the date hereof and will be materially true and correct on the Closing
(i) Seller holds the Property under an unrecorded Virginia Land Trust, a true and each Applicable Entity is duly organized, validly existing correct copy of which has been provided to Purchaser and in good standing under such Trust has not been modified or amended since the laws of its jurisdiction of formation.
date provided to Purchaser; (ii) Seller has full right, power, all requisite power and authority to execute and deliver enter into this Agreement and to consummate complete the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering herein; (as applicableiii) the Regulatory Approvals. The execution, delivery and performance of this Agreement will not constitute or result in a violation or breach by Seller of any judgment, order, writ, injunction, or decree issued against or imposed on Seller or will result in a violation of any Legal Requirement to which Seller is a party or by which it is bound; and (iv) Presxxx Xxxxxxxxx xxx Jonaxxxx X. Xxxxxx xxx the sole trustees of Viginia, L.C. as to the Property sold herein.
(b) Seller owns fee simple title to the Property and such ownership is free and clear of all Encumbrances other than the Permitted Encumbrances. There are no Private Covenants affecting the Property or Seller's obligations hereunder that will (i) affect the use and operation of the Property after Closing except private covenants which can be terminated with thirty (30) days notice without penalty to Purchaser, or (ii) affect Seller's obligations hereunder. Seller is the sole owner of the Property, and no consent is required from any third party other than the beneficiary of the Trust, Virginia, L.C., for the sale of the Property under this Agreement. By signing below, Seller represents and warrants that Virginia, L.C. has consented to the execution and delivery of this Agreement and has agreed to sell the Property to Purchaser upon the terms and conditions contained in this Agreement.
(c) No claim or demand has been made and there is no litigation, condemnation, zoning, or administrative proceeding or real estate tax protest or proceeding pending against or affecting Seller or all or any portion of the Property that, if decided or determined adversely to Seller or the Property, would impair Seller's ability to consummate the transactions provided for in this Agreement. Between the effective date of this Agreement and the Closing Date, Seller will not request or give its consent to any pending zoning variance with respect to the Property except as requested or agreed to by Purchaser.
(d) Seller has not received any written notice of (nor is there to the best of Jonaxxxx X. Xxxxxx xxx Presxxx Xxxxxxxxx' xxowledge): (i) any alleged violation of any Private Covenant or Legal Requirement, including, without limitation, applicable zoning laws, building codes, environmental laws or regulations, (except as may be shown in the Apex Environment reports obtained by Purchaser
(e) All utilities, to the best of Seller's knowledge, including, but not limited to, water, sanitary sewer, storm sewer, electricity, gas, telephone and trash removal are available at the boundary of the Property in capacities adequate for the operation of the Improvements presently located on the Property, and the consummation by Seller cost of the transactions contemplated hereby, have installation and connection of such utilities has been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesfully paid.
(iiif) Seller has not received any notice from any federal, state, county, municipal or other governmental department or agency concerning the need for immediate action to clean up any petroleum product or other Hazardous Waste discharge or seepage.
(g) Access to the Property is available by public streets, and Seller has no knowledge of any plans to change the highway or road system adjacent to the Property, except as may be shown in the Clarendon Sector Plan (prepared by the Arlington County Planning staff).
(h) To the best of Seller's knowledge the Property has all appurtenant easements that are necessary for the installation, maintenance and use of facilities for water, sanitary sewer, storm sewer, electricity, gas, and telephone services.
(i) Neither Seller nor the Property or any portion thereof is in the hands of a receiver nor is an application for a receiver pending or to Seller's knowledge, threatened. Seller has not made an assignment for the benefit of creditors, nor has Seller filed, or had filed against it, any petition in bankruptcy.
(j) There are is no actions, suits, claims, assessments, or proceedings pending or, to the best of Seller’s 's knowledge, threatened that would reasonably be expected to litigation, proceeding or investigation which might materially and adversely affect the ownership, operationuse, value, operation or maintenance title of the Applicable Entities or the Property or Seller’s ability to perform hereunderProperty.
(ivk) Except for Permitted Encumbrances There are no occupancy rights (written or oral), leases or tenancies affecting the Property, other than the Leases.
(l) All materials and as may be reflected on the Closing Statement with respect work supplied to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to by Seller 30 days of the Closing Date.
(vm) The rent roll attached hereto as Schedule 6(a)(v) is Exhibit D sets forth a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing list of all of the Equity Interestsequipment leases, and upon Purchaser’s payment waste disposal, snow removal, landscaping, maintenance or building service, management or other agreements relating to the ownership or operation of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests Property that are not subject to cancellation on thirty (30) days notice.
(n) Seller has not entered into any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive collective bargaining agreement or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements contract or commitments of agreement with any character under which Seller labor organization or other representative or any other person of Seller's employees, nor is any such contract or entity is or may become obligated agreement presently being negotiated.
(o) Seller has no employees working at the Property and Purchaser will have no obligations to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingSeller's employees.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Telebanc Financial Corp)
Seller’s Representations and Warranties. The Seller represents hereby makes the following express representations and warrants to Purchaser that:
(i) Seller warranties, which may be relied upon by the Purchasers and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formationtheir respective affiliates.
(iia) The Seller has full right, power, power and authority to execute sell the Tamboril Securities and deliver the Tamboril Claims to the Purchasers on the terms set forth herein. The execution and delivery of this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, herein have been duly and validly authorized by all necessary corporate action and no other corporate proceeding on the part of Sellerthe Seller is necessary to authorize this Agreement or to consummate the transactions contemplated herein. This Agreement, when Agreement has been duly executed and delivered by the Seller and, assuming the due execution and Purchaserdelivery hereof by the Purchasers, will constitute constitutes the legal, valid and binding agreement obligation of Seller, the Seller enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesterms.
(iiib) There are no actionsThe Seller acquired the Tamboril Securities and Tamboril Claims in December of 2002 by assignment from Summit Capital Limited ("Summit") and Glacier Capital Limited ("Glacier"). Prior to the assignment, suitsSummit and Glacier were the sole beneficial owners of the Tamboril Securities described in Amendment No. 1 to a Schedule 13D report of beneficial ownership that was filed with the Securities and Exchange Commission by Infinity Emerging Opportunities Limited ("Infinity"), claimsSummit and Glacier (collectively the "Original Holders") on August 3, assessments, or proceedings pending or, to 1998. To the best of Seller’s 's knowledge, threatened the only transactions in Tamboril Securities that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance were affected by any of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of Original Holders after the date of the rent rollabove referenced amendment were (i) a series of intercompany assignments that ultimately resulted in the transfer of the Infinity holdings to Summit, and otherwise accurately reflects(ii) the subsequent assignments from Summit and Glacier in favor of the Seller.
(c) Tamboril's Quarterly Report on Form 10-QSB for the period ended September 30, 1998 states that 13,356,652 shares of Tamboril's $.0001 par value common stock (the "Common Stock") were issued and outstanding on that date. The Seller is the assignee and has physical possession of stock certificates representing 7,380,042 shares, or 55.25%, of the Common Stock.
(d) Tamboril's Quarterly Report on Form 10-QSB for the period ended September 30, 1998 states that 33,227 shares of Tamboril's $.0001 par value, $50 stated value Series B Convertible Preferred Stock (the "Preferred Stock") were issued and outstanding on that date. The Seller is the assignee of all 33,227 shares of Preferred Stock, but such shares are held in all material respectsuncertificated form.
(e) Tamboril's Quarterly Report on Form 10-QSB for the period ended September 30, 1998 states that $200,000 of Tamboril's 8% Convertible Debentures ("Debentures") were issued and outstanding on that date. The Seller is the assignee and has physical possession of certificates representing $200,000 of Debentures.
(f) While the order confirming Tamboril's Amended Plan of Reorganization that was entered by the U.S. Bankruptcy Court for the Southern District of Florida on December 7, 2002 provides that the Preferred Stock and Debentures will be convertible into Common Stock in accordance with their terms, the subject matter thereof as of conversion process was hindered by administrative delays and has not been completed and at the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereofthis Agreement.
(vig) Schedule 6(a)(vi) is a trueDuring the period between September 30, correct 1998 and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereofof this letter, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller Tamboril has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nornot, to Seller’s 's knowledge, (A) issued any of their respective affiliates, partners, members, shareholders or other equity ownerssecurities, nor (B) any of their respective employeesdebt securities, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rightsdebt instruments, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase calls or other rights, agreements, arrangements or commitments that obligate Tamboril to issue, deliver or sell shares of any character under which Seller its capital stock or any other person or entity is or may become obligated to selldebt securities, or giving obligate Tamboril to grant, extend or enter into any individual such option, warrant, call or entity a right to acquireother such right, agreement, arrangement or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandingcommitment.
(xvh) During the period between September 30, 1998 and the date of this letter, the Original Holders have not, to Sellers knowledge, sold any Tamboril Securities to unaffiliated third parties; granted any options, warrants, calls or other rights, agreements, arrangements or commitments that obligate the Seller or their affiliates to deliver or sell any of their Tamboril Securities; or obligate the Seller or their affiliates to grant, extend or enter into any such option, warrant, call or other such right, agreement, arrangement or commitment.
(i) The Applicable Entities have no liabilitiesSeller has delivered copies of all available financial statements of Tamboril to the Purchasers. The Purchasers acknowledge that such financial statements are the sole responsibility of Tamboril's management. Nevertheless, obligations or commitments the Seller is not aware of any nature whatsoevermaterial misrepresentations, asserted errors or unassertedomissions in such financial statements and to the best of the Seller's knowledge, absolute or contingent, such financial statements have been prepared in accordance with generally accepted accounting principles and practices consistently followed by Tamboril throughout the periods indicated; contain and reflect all adjustments and accruals necessary for a fair presentation of Tamboril's financial condition as of the relevant dates thereof and the results of Tamboril's operations for the periods covered thereby; and fairly present the financial condition of Tamboril and its results of operations as of the relevant dates thereof and for the periods covered thereby.
(j) Tamboril has not less than $65,000 in cash and cash equivalents at the date of this Agreement. Tamboril has no other material assets.
(k) Tamboril has not more than $10,000 in accounts payable and accrued or unaccrued, matured or unmatured, or otherwise, except (A) liabilities at the date of this Agreement. Tamboril is also delinquent with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, its Delaware Franchise Tax obligations. Tamboril has no other material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)liabilities.
(xvil) To the extent Seller's knowledge, there are is no claim, action, suit, litigation, proceeding, arbitration or investigation of any proxies kind, at law or in equity (including actions or proceedings seeking injunctive relief), pending or threatened against Tamboril, or any properties or rights of Tamboril, and Tamboril is not subject to vote any continuing order of, consent decree, settlement agreement or other similar arrangements entered into by Sellerwritten agreement with, such proxies to vote or continuing investigation by, any governmental entity, or any judgment, order, writ, injunction, decree or award of any governmental entity or arbitrator, including, without limitation, cease-and-desist or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closingorders.
(xviim) Schedule 6(a)(xviiThe Seller is not aware of any material misrepresentations, errors or omissions in the registration statements, reports and other documents that Tamboril filed with the Securities and Exchange Commission between May 15, 1997 and December 22, 2000.
(n) is a trueAlan L. Goxxxxxx, correct Xxxxxxxx's last remaining director and complete listing executive officer resigned his positions effective December 31, 2002 and Tamboril does not presently have any directors or executive officers that are authorized to act on behalf of all agreements under or pursuant to which Regulatory Approvals the corporation.
(o) All of the Seller's representations and warranties are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, true as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean be true at the actual present knowledge closing date and shall survive the closing for a period of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Sellertwo (2) years.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants Except as to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) such matters that Seller has full rightadvised Xxxxx to the contrary, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed ’s express representations and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending orwarranties set forth herein, to the best of Seller’s knowledge, threatened that would reasonably shall be expected to materially true and adversely affect the ownership, operation, or maintenance correct as of the Applicable Entities Execution Date and at the close of escrow of the respective phases. The representations and warranties of Seller in this Agreement are a material inducement for Buyer to enter into this Agreement. Buyer would not purchase the Property from Seller without such representations and warranties of Seller. Seller shall notify Buyer in writing immediately if Seller receives actual knowledge that any representation or warranty made by Seller herein has become untrue. Seller warrants and represents to Buyer, to the best of it’s knowledge as of the Agreement Date as follows:
i. There are no claims, actions, suits or proceedings continuing, pending or threatened which would affect Seller, Buyer, the Property or Seller’s ability to perform hereunderthis transaction.
ii. All documents delivered to Buyer by Seller and its agents are complete originals or true and correct copies thereof.
iii. No Hazardous Materials (as hereinafter defined) have been stored on or under the Property, used or disposed of on the Property; nor have Hazardous Materials migrated on or into the Property, unless otherwise disclosed in writing to the Buyer and attached to this Agreement. As used herein, the term “Hazardous Materials” shall mean any substance, material, waste, chemical, mixture or compound which: (i) is flammable, ignitable, radioactive, hazardous, toxic, corrosive or reactive, and which is regulated under law or by a public entity, (ii) is a “Hazardous Substance” as defined or listed under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), or any regulations promulgated there under, as amended, (iii) is crude oil, petroleum, natural gas, or distillates or fractions thereof, and/or (iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect damages or threatens to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, damage health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulationthe environment, or (C) is required by any proceedings which could affect the Regulatory Approvals law or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or public entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interestsremediated, upon transfer including remediation which such law or public entity requires in order for property to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject put to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstandinglawful purpose.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Seller’s Representations and Warranties. Seller represents makes the following representations and warrants warranties, each of which shall be continuing and shall survive the Closing for a period of six (6) months after the Closing (the “Survival Period”). Whenever a representation or warranty is being made “to Purchaser that:
(i) Seller’s knowledge,” such qualification indicates that the warranty is being made to the current actual knowledge of the Executive Director, without any implied, imputed or constructive knowledge and without any independent investigation having been made or any implied duty to investigate. No claim for a breach of any representation or warranty of Seller shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter of which City has actual knowledge prior to Closing and each Applicable Entity is duly organizedCity closed Escrow despite such knowledge. Nothing in the foregoing sentence shall preclude City from its remedies for termination of this Agreement before the Closing due to a Seller breach or default that Seller does not timely cure. Seller shall have no liability to City for a breach of any representation or warranty unless written notice containing a description of the specific nature of such breach shall have been given by City to Seller prior to the expiration of the Survival Period and any court action or other legal proceeding shall have been commenced by City against Seller within the Survival Period. Except as expressly set forth in this Agreement, validly existing and in good standing under Seller has not made any warranty or representation, express or implied, written or oral, concerning the laws of its jurisdiction of formationProperty or the Property.
(iia) Seller has the full right, power, right and authority and has obtained any and all consents required to execute and deliver enter into this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of cause to be consummated the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This AgreementAgreement has been, when executed and all of the documents to be delivered by Seller at the Closing will be, authorized and Purchaserproperly executed and constitutes, or will constitute constitute, as appropriate, the valid and binding agreement obligation of Seller. Except as disclosed in the Title Report, enforceable against Seller in accordance with its terms subject has not entered into any contracts, agreements or understandings, verbal or written, for the sale, transfer or lease of any portion of the Property and no party has a right or option to principles of bankruptcy and general equitable principlespurchase the Property.
(iiib) There are no actions, suits, claims, assessmentsExcept to the extent disclosed in any reports or information provided by Seller to City, or proceedings pending orotherwise disclosed to City, Seller has no knowledge of, nor has Seller, to Seller’s knowledge, received written notice of any lawsuits, condemnation or eminent domain proceedings, or litigation pending, threatened or which have been filed against Seller that would reasonably be expected to materially and adversely affect the ownershipProperty or use thereof, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder. Except to the extent disclosed in any reports or information provided to City, and except for this Agreement, and other documents related to this Agreement, Seller has not entered, and throughout the Agreement Term will not enter, into any agreements that will affect City or the Property after the Closing unless City provides consent to Seller to do so, which consent City may withhold, condition or delay in its sole discretion.
(ivc) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from disclosed in any insurance companies, governmental agencies reports or authorities information provided by Seller to City or from disclosed to City through any other parties related to (A) any conditions, defects physical testing or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification inspection of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, ,to Seller’s knowledge, (Ai) there are no Hazardous Substances on, in or under the Property in violation of any applicable Environmental Laws relating thereto, (ii) neither Seller nor any prior tenants of their respective affiliatesSeller have generated, partnersproduced, membersused, shareholders reused, sold, stored, transported or disposed of Hazardous Substances on, in or under the Property in violation of any applicable Environmental Laws relating thereto, and (iii) there are not currently and have not been in the past any underground or other equity ownersabove-ground storage tanks situated on the Property. All capitalized terms used in this Section 10(c) are defined in Exhibit E.
(d) Except to the extent disclosed in any reports or information provided by Seller to City or disclosed to City through any physical testing or inspection of the Property,to Seller’s knowledge, Seller is not aware of, nor has Seller received, any notice from any governmental authority that any condition at the Property violates any material provision of applicable building codes, zoning or land use laws, other local, state or federal laws and regulations, or restrictive easements or covenants affecting the Property.
(Be) any Seller is not a “foreign person” within the meaning of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”Section 1445(f) of the Department of Internal Revenue Code and Seller is not, nor is any person who owns a controlling interest inor otherwise controls Seller, (a) listed on the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or on any other similar list maintained by the OFAC pursuant to any authorizing statute, executive order (including the September 24, 2001, Executive Order Blocking Property or regulation (collectively, “OFAC Laws and Prohibiting Transactions with Persons Who CommitRegulations”); or (b) a person either (i) included within the term “designated national” as defined in the Cuban Assets Control Regulations, Threaten to Commit31 C.F.R. Part 515, or Support Terrorism(ii) designated under Sections 1(a), 1(b), 1(c) or 1(d)of Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or similarly designated under any related enabling legislation or any other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents similar Executive Orders (collectively, the “Organizational DocumentsExecutive Orders”). Neither Seller nor any of its principals is (x) have been provided a person orentity with which City is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, or that commits, threatens or conspires to Purchasercommit or supports “terrorism” as defined in the Executive Orders, or (y) is affiliated or associated with a person or entity listed in the preceding clause (x). The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity InterestsTo Seller’s knowledge, neither Seller nor any other party has equity interests of its principals or rights to acquire equity affiliates, (I) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Orders or (II) engages in or conspires to engage in any Applicable Entity. None of the Applicable Entities havetransaction that evades or avoids, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner purpose of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws evading or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sellavoiding, or giving any individual or entity a right attempts to acquire, or in any way dispose ofviolate, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) prohibitions set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofAnti-Terrorism Law. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used Asused in this Agreement, “Seller’s knowledgeAnti-Terrorism Law” shall mean means the actual present knowledge OFAC Laws and Regulations, the Executive Orders and the Uniting and Strengthening America by Providing Appropriate ToolsRequired to Intercept and Obstruct Terrorism Act of Jun Sakumoto2001, without regard to any imputedPub. L. No. 107-56, implied or constructive knowledge115 Stat. 272 (2001), without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Selleras amended.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatBuyer as follows, which representations and warranties shall be true and correct in all material respects as of the Effective Date and as of the Closing Date, and which shall survive the Closing for a period of seven (7) years thereafter that except as set forth on Exhibit F as attached hereto and as may be amended from time to time by Seller through the Closing Date:
(ia) To Seller's knowledge, no notice of any material violation of any zoning, building or other law, ordinance, regulation, requirement or directive of any type against the Property or any portion thereof has been received by Seller from a governmental body.
(b) To Seller's knowledge, no notice of a pending condemnation, expropriation, eminent domain or similar proceeding affecting all or any portion of the Property has been received by Seller.
(c) Seller will not enter into any employment contracts or deferred compensation agreements with employees of Seller, if any, at the Property, which will be binding upon Buyer after the Closing, without the prior consent of Buyer.
(d) All of the Property to be transferred on the Closing Date shall be in the same condition as on the Effective Date of this Agreement, except for reasonable wear and each Applicable Entity tear.
(e) Seller is a corporation duly organizedconstituted, validly existing existing, and in good standing under the laws of its jurisdiction the State of formationMississippi.
(iif) Seller has full rightTo Seller's knowledge, power, and authority to execute and deliver this Agreement and to consummate Seller's income tax returns have not been audited by the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, Internal Revenue Service or the taking State of any other actions with respect toMississippi.
(g) As of the Closing Date, any third partiesSeller will hold good and marketable title to all of the Property, subject to no mortgage, pledge, lien, encumbrance, security interest or charge, that will not be discharged prior to Closing, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principlesPermitted Exceptions.
(iiih) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially The Property is and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior adequately insured against fire and casualty to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent rollvalid policies therefor are and will be outstanding and duly enforced, and otherwise accurately reflects, in all material respects, the subject matter thereof as of premiums to become due thereon to the date of the rent rollClosing Date will be paid when due by Seller. Seller has delivered or made available not received any notice of any cancellation of policies pertaining to Purchaser truethe foregoing. Seller will indemnify and hold harmless Buyer, correct its successors and complete copies of all Leases assigns, from and against any and all amendments thereto loss, liability, damage, cost or modifications thereof.
(vi) Schedule 6(a)(vi) is expense, including, without limitation, reasonable attorneys' fees, suffered or incurred by Buyer due to a true, correct and complete listing breach of all License Agreements, and all Licensees thereunder, as any of the date thereof, foregoing representations and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofwarranties. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation No claim for a breach of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap representation or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect warranty of Seller shall be actionable after Closing if the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, breach in question was actually known to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned Buyer prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants the following to Purchaser that:as of the date hereof, notwithstanding any independent investigation which Purchaser may have conducted (but subject to the last paragraph of this Section):
(i) 6.1 Seller is the owner of legal and each Applicable Entity beneficial title to the Property and is duly organizedlawfully seized of the Property as of the date of this Agreement. Except for the Underlying Loan Documents and the matters shown on Schedule B-2 attached to the title insurance commitment listed on Exhibit F, validly existing the Property is free and clear of any and all liens, encumbrances, pledges, security interests or adverse claims of any kind or character, and there are no claims which could result in good standing under the laws a lien or encumbrance of its jurisdiction of formationany kind thereon.
(iia) Seller is the owner of legal and beneficial title to the Remainder Interests and the Remainder Economic Interests, is lawfully seized of the Remainder Interests and the Remainder Economic Interests as of the date of this Agreement, and will continue to be so seized with respect to the Remainder Interests and the Remainder Economic Interests until each such Interest is conveyed to Purchaser under this Agreement.
(b) All of the Prospective Economic Benefits are free and clear of all liens, encumbrances, pledges, hypothecations, and other claims and security interests of all types.
(c) On the date hereof and on the applicable Closing Date(s) the Remainder Interests and Remainder Economic Interests are and will be free and clear of all liens, encumbrances, pledges, hypothecations and other claims and security interests of all types.
(d) Seller has full rightthe power and authority to allocate to Purchaser all of the Prospective Economic Interests and to pledge, powerconvey or cause the conveyance of the Remainder Interests, the Remainder Economic Interests, and authority fee title to the Property, all as provided herein.
6.3 Seller is fully authorized and empowered to execute and deliver this Agreement and all documents contemplated to consummate be executed by Seller hereunder; the purchase execution and sale transactions provided for herein without obtaining any further consents or approvals fromperformance
6.4 Except as noted on Exhibit G, the loan evidenced by the Underlying Loan Documents is in good standing and no situation exists or, with the passage of time or the taking giving of any other actions with respect tonotice (or both) could exist, any third parties, other than obtaining which would constitute a default thereunder or delivering (as applicable) cause the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date acceleration thereof. Seller has delivered or made available to Purchaser true, correct accurate and complete copies of all License Agreements the Underlying Loan Documents.
6.5 Except as shown on Exhibit G, there are no defaults (or situations which, with the passage of time or the giving of notice (or both), could constitute defaults), claims, actions, litigation or proceedings, actual, pending or to the best of Seller's knowledge, threatened, and all amendments thereto there are no outstanding judgments or modifications rulings, by any organization, entity, person, individual or governmental agency which would affect the Prospective Economic Benefits, the Remainder Interests, the Remainder Economic Interests or, to the best of Seller's actual knowledge, the Property or any part thereof.
(vii) Except as otherwise disclosed 6.6 No assessment, special assessment or tax shall be permitted to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (become a lien on the Remainder Interests or the Remainder Economic Interests prior to the extent receivedapplicable conveyances thereof under this Agreement.
6.7 Subject to the terms of the leases described on Exhibit H attached hereto and incorporated herein, such violation Seller has been cured) from any insurance companies, governmental agencies made full payment for the installation or authorities or from any other parties related to (A) any conditions, defects or inadequacies the consumption of all utilities with respect to the Property (including health hazards for which Seller is required to make payment.
6.8 To the best of Seller's actual knowledge, the Property and every part thereof complies with all applicable laws, ordinances, regulations, statutes, codes, rules and restrictions relating thereto, and no permit, agreement, lease,
6.9 All leasing commissions for the Property have been paid.
6.10 Except for the Underlying Loan Documents and any leases described on Exhibit H, there are no leases, contracts or dangersagreements with or binding on the Property. The leases listed on Exhibit I attached hereto and incorporated herein have expired or been terminated and are of no further force and effect.
6.11 All bills and claims for labor performed and materials furnished to Seller or to Landmor, nuisance Inc. or waste)to Haft Equities-General Limited Partnership or to CPI with respect to the Property for all periods prior to the date hereof have been paid in full, whichand there are no mechanics' liens or materialmen's liens, if whether or not correctedperfected, would on or affecting any portion of the Property as a result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoninglabor performed or materials provided to Seller or to Landmor, buildingInc. or to Haft Equities-General Limited Partnership or to CPI. Seller shall provide Purchaser's title insurer with such affidavits and other evidence as it may reasonably require so as to enable Purchaser's title insurer to furnish Pennsy Newco with title policies without exception for mechanics' or materialmen's liens arising from labor performed or materials furnished to Seller or to Landmor, health, environmental, traffic, flood control, fire safety, handicap Inc. or other law, code, ordinance, rule to Haft Equities-General Limited Partnership or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of to CPI with respect to the Property.
6.12 Seller's United States taxpayer identification number and address are set forth following his signature on this Agreement, Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code (viiithe "Code"), and Seller will execute and deliver an affidavit to the same effect. In the event Seller is a "foreign person" (as defined above) Neither or does not execute and deliver the foregoing affidavit, Purchaser may pay such sums directly from the Allocation and execute such notices, certificates, letters or other instruments in its own behalf or as attorney-in-fact for Seller nor any Applicable Entityas may be necessary in order to comply with the withholding provisions of Section 1445 of the Code. Under penalty of perjury, norSeller certifies that the taxpayer identification number provided for him beneath his signature line is correct for purposes of Section 6045 of the Code.
6.13 Except as disclosed in the Complaint filed in the Pennsy Warehouse Lawsuit (as defined in Exhibit G), to the best of Seller’s knowledge's actual knowledge Seller has never used, processed, released, discharged, generated, stored or disposed of any Hazardous Substance (Aas hereinafter defined) any of their respective affiliateson, partners, members, shareholders under or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than about the Property and or from the Property to any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications theretoother location, and no Hazardous Substance has been used, processed, released, discharged, generated, stored or disposed of on the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved Property by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereofentity. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.,
Appears in 1 contract
Samples: Purchase Agreement (Dart Group Corp)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:that the following are true, complete and correct as of the Effective Date and shall be true, complete and correct as of each Closing Date (with respect to the Properties being transferred and conveyed as of such Closing Date):
(ia) Seller and each Applicable Entity is duly organized, validly existing existing, and in good standing under the laws of its jurisdiction of formation.
(ii) the State in which Seller was incorporated. Seller has full right, power, all requisite corporate power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvalscontemplated hereby. The execution, execution and delivery and performance of this Agreement by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have hereby has been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of SellerSeller are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement, when Agreement has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery of this Agreement by Purchaser, will constitute constitutes the legal, valid and binding agreement obligation of Seller, enforceable against Seller in accordance with its terms subject terms, except as may be limited by (i) any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to principles creditors’ rights, and (ii) the law of bankruptcy fraudulent transfer and general equitable principlesconveyance.
(b) Neither the execution and delivery of this Agreement nor its performance by Seller will conflict with or result in the breach of any contract, agreement, or Applicable Laws to which Seller is a party, other than Leases, ground leases or Permitted Exception documents for which Required Consents are necessary as set forth in Section 5.2(c).
(c) No approvals, consents, authorizations, declarations, registrations or notices of or to any Governmental Entity that have not been received or made is required by or with respect to Seller in connection with the execution, delivery and performance of this Agreement by Seller or the consummation by Seller of the transactions contemplated hereby except for (i) the filing of any premerger notification and report forms and the expiration or termination of any waiting periods required by the HSR Act, (ii) any applicable approvals, consents, authorizations, declarations, registrations or notices under any pharmacy regulations or to any Governmental Entities or third party administrators in connection with the transactions contemplated under Article II (“Pharmacy Approvals”), and (iii) There are no actionsany other approvals, suitsconsents, claimsauthorizations, assessmentsdeclarations, registrations or notices that, if not made or obtained, would not materially and adversely affect the ability of Seller to perform its obligations under this Agreement or under any instrument, document or agreement required to be executed and delivered pursuant hereto (collectively, the “Related Agreements”) or to consummate the transactions contemplated hereby or thereby.
(d) Seller is the owner of the Personal Property, free and clear of all liens and encumbrances.
(e) Seller has not entered into any currently effective agreement to lease (other than the Leases), sell, mortgage or otherwise encumber or dispose of its interest in any of the Transferred Assets or any part thereof (other than currently effective Subleases, or proceedings otherwise in the ordinary course of business), except for this Agreement, any Permitted Exceptions and mortgages, deeds of trust or other encumbrances that will be satisfied and released from the Properties at or before the Closing.
(f) Except as set forth on Schedule 8.1(f) attached hereto, to the knowledge of Seller, Seller has not received any written notice that the Transferred Assets or any part thereof are presently in violation in any material respect of any Applicable Laws, or any covenants or restrictions of record applicable to the particular Transferred Assets, provided that notwithstanding anything to the contrary herein, the provisions of this Section 8.1(f) relating to Violations shall be applicable only as of the Effective Date, and any Violations issued with respect to the Properties subsequent to the Effective Date shall be governed by Section 5.1(d) hereof.
(g) Except as set forth on Schedule 8.1(g), to the knowledge of Seller, there is no action, proceeding or investigation pending oror threatened against or involving the Transferred Assets or against Seller with respect to the Transferred Assets before any court or governmental department, commission, board, agency or instrumentality.
(h) Except as set forth on Schedule 8.1(h) attached hereto, Seller has not received written notice of any proposed material reassessment of any Property for purposes of real estate taxes. Except as set forth on Schedule 8.1(h-1), Seller has not received written notice of any special or general assessments affecting any Property.
(i) Schedule 1.1(b)-1 describes all of the Leases, including all amendments, modifications and revisions thereof (all of which are deemed included within the term “Leases” defined herein), and Seller has made available to Purchaser true and complete copies of all Leases, except as set forth on Schedule 1.1(b)-1. Each of the Leases is in full force and effect. To Seller’s knowledge, no commissions to any broker or leasing agent and payable by Seller are due or will become due pursuant to an agreement made by Seller on account of any of the Leases or upon extension or renewal of the original term thereof, whether or not pursuant to an option or other rights contained in the Lease. Except as set forth on Schedule 8.1(i)-1 attached hereto, Seller has not received or given any written notice from or to a Landlord that any default exists on the part of the Seller or the respective Landlord under any of the Leases, which default has not been cured. Schedule 8.1(i)-2 discloses all unapplied security and other deposits held by Landlords under the Leases. Seller has not made any advance payment of rent (other than for the current month) on account of any of the Leases. All written or oral leases, subleases, license agreements, concession agreements or tenancies or rights of possession affecting the Leased Properties entered into by Seller other than the Leases (collectively, the “Subleases”) shall be terminated effective at or prior to each Occupancy Delivery Date (except for those Subleases and consent agreements listed on Schedule 8.1(j), which shall not be terminated (the “Approved Subleases”)). All of the Leases are assignable by Seller at Closing as contemplated by this Agreement without the consent of any other party, except for the Required Consents. The square footage amounts for Seller’s stores at the Properties set forth on Schedule 8.1(i)-3 do not include any of the space subleased under the Approved Subleases.
(j) (i) Schedule 8.1(j) describes the Approved Subleases, including all amendments, modifications and revisions thereof (all of which are deemed included within the term “Approved Subleases”), and, except for the Additional Approved Sublease Documents, Seller has made available to Purchaser true and complete copies of all the Approved Subleases, (ii) each of the Approved Subleases is in full force and effect, (iii) except as set forth in Schedule 8.1(j), Seller has not received or given any written notice from or to a subtenant that any default exists on the part of Seller or the subtenant under any of the Approved Subleases, which default has not been cured, and, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownershipno subtenant is currently in default in any material respect under any Approved Sublease, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, no right or claim of setoff against rent exists or has been claimed in writing to exist by any subtenant under the Approved Subleases, (Avi) Schedule 8.1(j) discloses all security and other deposits made by each subtenant under the Approved Subleases, (vii) Seller has not received any advance payment of rent (other than for the current month) under any of their respective affiliatesthe Approved Subleases except as shown on Schedule 8.1(j), partnersand (viii) the premises subleased pursuant to the Approved Subleases are located outside the walls of Seller’s store operated on each Property. Notwithstanding the foregoing, memberswith respect to those Approved Subleases comprising consent agreements and not actual Subleases, shareholders Seller’s representations and warranties set forth above shall only be made to Seller’s knowledge. Notwithstanding anything herein to the contrary, with respect to Seller’s representations and warranties set forth in Section 8.1(i) and (j) of this Agreement, upon receipt by Purchaser of an estoppel letter (in the form described in this Agreement) from a Landlord or subtenant, as applicable, for any Property, Seller’s representations and warranties with respect to the matters contained in such estoppel letter shall terminate and be of no further force or effect.
(k) Except as disclosed on Schedule 8.1(k) attached hereto and except as disclosed in any Phase 1 or Phase 2 reports or other equity ownersdue diligence information or materials received by Purchaser, nor Seller has received no written notice: (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”i) of the Department presence of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) any under or above-ground storage tanks on, in or under any statute, executive order Property; (including the September 24, 2001, Executive Order Blocking Property ii) that there are any uncured violations of Environmental Laws that have been issued and Prohibiting Transactions are currently in effect with Persons Who Commit, Threaten respect 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.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) Trueany Hazardous Materials or any asbestos-containing materials, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities havelead-based paint, or have ever hadmold contamination on, in or under any subsidiaries.
Property; or (xiiy) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear presence of any encumbrances, except for polychlorinated biphenyls or radioactive materials located on any encumbrances imposed under the Organizational DocumentsProperty. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to To Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting knowledge, there is no ongoing environmental remediation or otherwise relating to the voting, dividend rights investigation being performed by or disposition on behalf of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”)Properties.
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatas follows as of the date hereof (unless otherwise stated) and as of the Closing Date:
(i) A. The facts described in the recitals to this Agreement are true and correct.
B. Seller is a duly formed and each Applicable Entity is duly organized, validly existing and corporation in good standing under the laws of its jurisdiction the State of formation.
(ii) Illinois; Seller has full right, power, and authority been duly authorized to execute and deliver this Agreement and to consummate the purchase transaction contemplated hereby; the persons executing this Agreement and sale transactions provided for herein without obtaining any further all of the documents required to consummate the transaction contemplated hereby have been duly authorized to execute such documents and to bind Seller.
C. Seller is the fee simple owner of the Property.
D. Seller is not a "foreign person" within the meaning of Section 1445(F)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and Seller shall on the Closing Date provide Purchaser with all instruments and documents required by Section 1445 of the Code to comply therewith.
E. Seller has taken all necessary corporate actions and obtained all necessary consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The to authorize its execution, delivery and performance of this Agreement and the transaction contemplated hereby, and this Agreement is enforceable against Seller.
F. There is no legal action pending which would materially affect the ability of Seller to carry out the transaction contemplated by this Agreement. Each of the representations and warranties contained in Section VIII of this Agreement shall survive the date of Closing and/or the expiration or termination of this Agreement for a period of six (6) months (except for Seller's representation and warranty contained in Section VIII(j), which shall survive indefinitely). Seller agrees to indemnify and hold Purchaser free and harmless from and against all losses, damages, costs and expenses (including attorneys' fees and expenses) sustained by Purchaser as a result of any inaccuracy or breach of any representation or warranty of Seller contained in Section VIII of this Agreement. Notwithstanding anything contained herein or elsewhere in this Agreement to the contrary, and in the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part event any of Seller. This Agreement's representations or warranties made in this Section VIII are untrue, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller inaccurate or incorrect in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all any material respectsrespect, the subject matter thereof as aggregate liability of the date of the rent roll. Seller has delivered arising pursuant to or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is in connection with a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation breach of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals such representations and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, warranties shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of exceed the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Seller.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that:
(ia) Seller shall maintain the Subject Premises until the Closing in substantially its present condition, normal wear and each Applicable Entity is duly organizedtear excepted. Seller shall operate the Subject Premises in the ordinary course, validly existing and in good standing under as it has been operated prior to the laws date of its jurisdiction of formationthis Agreement. Seller shall not, without Buyer’s consent, enter into any contract or lease for, on behalf of, or affecting the Subject Premises which cannot be terminated within thirty (30) days without charge, cost, penalty, or premium.
(iib) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate To the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking best of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened Seller is not aware of any underground storage tanks, nor has the Subject Premises been used for storage or disposal of hazardous waste. The term “hazardous waste,” as used herein, shall mean substances deemed hazardous pursuant to and federal, State or local laws.
(c) Xxxxx acknowledges that would reasonably be expected to materially and adversely affect the ownership, operationBuyer will have, or maintenance has had, an opportunity to inspect the Property and agrees to accept the Subject Premises in its “AS IS” condition as of the Applicable Entities Closing Date. Buyer has not relied upon any implied or the Property express warranties of Seller, or Seller’s ability employees or agents, in connection with the Subject Premises or its purchase, except as specifically set forth in this Agreement. Except as expressly provided to perform hereunderthe contrary elsewhere herein, Seller hereby specifically disclaims any warranty, guarantee, or representation, oral or written, past, present, or future, of, as to, or concerning the nature and/or condition of the Subject Premises, including, without limitation, the size, square footage, location of boundaries, environmental condition, soil and geology of the Subject Premises, and the suitability thereof for any structure, or ag related activity which Buyer may construct or pursue thereon and the condition and suitability or fitness for a particular purpose (whether or not known to Seller) of any improvement located on the Subject Premises.
(ivd) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration ItemsBy purchase hereof, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of the rent roll, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date of the rent roll. Xxxxx does hereby release Seller has delivered or made available to Purchaser true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date all conditions of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (property as defined below) set forth on Schedule 6(a)(xv) (the “Ongoing Indemnification Obligations”).
(xvi) To the extent there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, and the unrestricted right of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used described in this AgreementSection 10, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member of Sellerelsewhere herein.
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Seller’s Representations and Warranties. 6.1 Seller warrants and represents the following is true and warrants to Purchaser that:
(i) Seller and each Applicable Entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(ii) Seller has full right, power, and authority to execute and deliver this Agreement and to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, or the taking of any other actions with respect to, any third parties, other than obtaining or delivering (as applicable) the Regulatory Approvals. The execution, delivery and performance by Seller of this Agreement, and the consummation by Seller of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of Seller. This Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms subject to principles of bankruptcy and general equitable principles.
(iii) There are no actions, suits, claims, assessments, or proceedings pending or, to Seller’s knowledge, threatened that would reasonably be expected to materially and adversely affect the ownership, operation, or maintenance of the Applicable Entities or the Property or Seller’s ability to perform hereunder.
(iv) Except for Permitted Encumbrances and as may be reflected on the Closing Statement with respect to Proration Items, all bills and other payments due and payable before the Closing Date with respect to the ownership, operation, and maintenance of the Applicable Entities and the Property have been paid or will be paid prior to the Closing Date.
(v) The rent roll attached hereto as Schedule 6(a)(v) is a true, correct and complete listing of all Leases, and all Tenants thereunder, as of the date of Closing (hereinafter defined).
(a) Seller has full power and authority to enter into this Contract. The execution and delivery require no further action or approval in order to constitute this Contract as binding and enforceable obligations of Seller.
(b) To the rent rollbest of Seller's knowledge, and otherwise accurately reflectsno litigation or proceeding is pending or threatened relating specifically to the Property, which if adversely determined, could have a material adverse effect on title to and/or the use, or which could, in all any way, interfere with the consummation of this Contract.
(c) To the best of Seller's knowledge, no person has caused a release or threatened a release of any hazardous material respectson about or under the Property. In addition Seller has no knowledge that the Property contains any underground storage tank, asbestos building material or a drycleaning plant or facility using drycleaning solvents.
(d) To the subject matter thereof best of Seller's knowledge , there are no Leases affecting the Property, oral or written, except as of the date of listed on the rent roll. Seller has Copies of the Leases, which shall be delivered or made available to Purchaser the Buyer are true, correct and complete copies of all Leases and all amendments thereto or modifications thereof.
(vi) Schedule 6(a)(vi) is a true, correct and complete listing of all License Agreements, and all Licensees thereunder, as of the date thereof, and otherwise accurately reflects, in all material respects, the subject matter thereof as of the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all License Agreements and all amendments thereto or modifications thereof.
(vii) Except as otherwise disclosed to Purchaser in writing, neither Seller nor any Applicable Entity has received any written notice of violation (or to the extent received, such violation has been cured) from any insurance companies, governmental agencies or authorities or from any other parties related to (A) any conditions, defects or inadequacies with respect to the Property (including health hazards or dangers, nuisance or waste), which, if not corrected, would result in termination of insurance coverage or increase its costs therefor, (B) any violation of any applicable zoning, building, health, environmental, traffic, flood control, fire safety, handicap or other law, code, ordinance, rule or regulation, or (C) any proceedings which could affect the Regulatory Approvals or cause the change, redefinition or other modification of the zoning classification of the Property.
(viii) Neither Seller nor any Applicable Entity, nor, to Seller’s knowledge, (A) any of their respective affiliates, partners, members, shareholders or other equity owners, nor (B) any of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(ix) No Applicable Entity has any right, title or interest in any property other than the Property and any Excluded Property Agreements.
(x) True, correct and complete copies of the current limited liability company agreement or limited partnership agreement (as applicable) of each Applicable Entity, with all amendments and modifications thereto, and the current certificate of formation or certificate of limited partnership (as applicable) of each Applicable Entity, with all amendments and modifications thereto, if any, and all company minutes, member or partner consents and other organizational documents (collectively, the “Organizational Documents”) have been provided to Purchaser. The Organizational Documents are in full force and effect and, except to the extent approved by Purchaser, shall not be amended, modified, supplemented or assigned prior to Closing.
(xi) Other than the Equity Interests, neither Seller nor any other party has equity interests or rights to acquire equity interests in any Applicable Entity. None of the Applicable Entities have, or have ever had, any subsidiaries.
(xii) Seller is the record and beneficial owner of the Equity Interests and has good and valid title to the Equity Interests, free and clear of any encumbrances, except for any encumbrances imposed under the Organizational Documents. The Equity Interests are duly authorized, validly issued, fully paid and nonassessable, but are not certificated.
(xiii) Assuming that Purchaser has the requisite power and authority to be the lawful owner of the Equity Interests, upon transfer to Purchaser at the Closing of all of the Equity Interests, and upon Purchaser’s payment of the Purchase Price, Purchaser will acquire the Equity Interests, free and clear of any encumbrances, except for encumbrances imposed under applicable securities laws or the Organizational Documents.
(xiv) Except as set forth in the Organizational Documents or in any of the existing loan documents listed on Schedule 6(a)(xiv) (the “Existing Loan Documents”) which will not be paid off on or prior to Closing, to Seller’s knowledge (A) the Equity Interests are not subject to any arrangement restricting or otherwise relating to the voting, dividend rights or disposition of the Equity Interests, and (B) there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller or any other person or entity is or may become obligated to sell, or giving any individual or entity a right to acquire, or in any way dispose of, any of the Equity Interests owned or any securities or obligations exercisable or exchangeable for, or convertible into, any of the Equity Interests, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(xv) The Applicable Entities have no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, or otherwise, except (A) with respect to any existing loans evidenced, secured or governed by the Existing Loan Documents, (B) those which are adequately reflected and reserved against in the books, records and financial statements provided to Purchaser, (C) those which have been incurred in the ordinary course of business consistent with past practice since the date of the last delivered books, records and financial statements and which are not and could not reasonably be expected to become, individually or in the aggregate, material in amount, and (D) the ongoing indemnification obligations in connection with the Regulatory Agreements (as defined below) matters set forth on Schedule 6(a)(xvthe rent roll. All of the Tenant leases are in good standing and no defaults exist thereunder except as noted on the rent roll. No rent or reimbursement has been paid more than one (1) (month in advance and no security deposit has been paid, except as stated on the “Ongoing Indemnification Obligations”).
(xvi) To the extent rent roll. No tenant under any lease has been promised any inducement, consession or consideration by Seller other than expressly stated in such Lease, and except as stated therein there are any proxies to vote or other similar arrangements entered into by Seller, such proxies to vote or other similar arrangements will not affect the Equity Interests in any way on and after the Closing and will be terminated prior to Closing, no side agreements between Seller and the unrestricted right any tenant. For purposes of Seller to vote the Equity Interests will be transferred to Purchaser at Closing.
(xvii) Schedule 6(a)(xvii) is a true, correct and complete listing of all agreements under or pursuant to which Regulatory Approvals are required (the “Regulatory Agreements”), and all Regulatory Agencies thereunder, as of the date thereof, and otherwise accurately reflects, in all material respectsthis Contract, the subject matter thereof as of terms "to the date thereof. Seller has delivered or made available to Purchaser true, correct and complete copies of all Regulatory Agreements and all amendments thereto or modifications thereof.
(xviii) As used in this Agreement, “Seller’s knowledge” shall mean the actual present knowledge of Jun Sakumoto, without regard to any imputed, implied or constructive knowledge, without independent inquiry or duty of investigation of such person or any other officer, director, partner and/or member best of Seller's knowledge", "Seller's knowledge" and/or "knowledge" shall be limited to such actual knowledge or written notice or report that has actually been received by Xxxx X. Xxxxxx, Xx., who is Seller's Manager of Real Estate Equity Assets or Xxxxxxxx X. Xxxxxxxxx, who is Seller's Director of Real Estate Equity Assets.
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