Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule: (a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted. (b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent. (c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980. (d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents. (e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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. (f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein. (g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years. (h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied. (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and (iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith. (j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees. (k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k). (l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing. (m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date. (n) With respect to employees of Seller: (i) there is no pending or threatened unfair labor practice charges or employee grievance charges; (ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller; (iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist; (iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller. (v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions. (vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees. (vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees. (o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder. (p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services. (q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities. (r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule. (s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Players International Inc /Nv/), Asset Purchase Agreement (Players International Inc /Nv/)
Seller’s Representations and Warranties. In addition to the --------------------------------------- representations and warranties set forth elsewhere in this Agreement, Seller hereby represents, warrants and covenants to Buyer, as follows:
15.1.1 The accuracy and completeness of the following constitute a condition to the Close of Escrow and Seller represents and warrants to Purchaser thatthat the following are complete and accurate as of the date of this Agreement, to will be complete and accurate as of the best Close of Seller's knowledge Escrow, and except as set forth in survive the Disclosure Schedule:Close of Escrow and the delivery and recordation of the Deed for a period of two (2) years.
(a) 15.1.2 The individual executing this Agreement on behalf of Seller is a limited partnership authorized to do so and upon his or her execution hereof, this Agreement shall be binding and enforceable upon Seller in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisianaaccordance with its terms. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedulelegal power, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power right and authority to enter into and perform under (x) this Agreement and to consummate the transactions contemplated by this Agreement. All requisite action (ycorporate, partnership, trust or otherwise) all documents and instruments to be executed has been taken by Seller pursuant to in connection with entering into this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance consummation of the transactions contemplated by this Agreement. The sale transaction contemplated by individual(s) executing this Agreement is being made in connection with the winding-up on behalf of Seller as contemplated under Section 13.02(fhas (have) the legal power, right, and actual authority to bind Seller to the terms and conditions of Seller's Articles of Partnership In Commendam dated as of May 1, 1980this Agreement.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) 15.1.3 Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the incurrence of the obligations set forth in this Agreement, nor the consummation by Seller of the transactions herein contemplatedcontemplated by this Agreement, nor compliance with the provisions of this Agreement will conflict with or result in a breach of any of the termsprovisions of, conditions or provisions of Seller's Articles of Partnership In Commendam constitute a default under, any bond, note or other organizational documentsevidence of indebtedness, or contract, indenture, mortgage, deed of any statute or administrative regulationtrust, or of any orderloan, writagreement, injunction, judgment or decree of any court or any governmental authority or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession other agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party and or by which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at Property or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best any of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)properties may be bound.
(l) 15.1.4 Seller is not a party to, foreign person or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument entity under Section 1445 of the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingInternal Revenue Code.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, 15.1.5 Neither Seller nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(oprincipals is a disqualified person under Section 4975(a) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, Internal Revenue Code or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior theretoa "party in interest" as defined in Section 3(14), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Tejon Ranch Co), Purchase and Sale Agreement (Tejon Ranch Co)
Seller’s Representations and Warranties. The Seller represents and warrants to Purchaser the Buyer that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws owns all of the State Purchased Shares in fee simple title, Seller is transferring the Purchased Shares free and clear of Louisiana. Seller any and all liens, claims, and encumbrances of any kind (other than restrictions on transfer under Florida and federal securities laws), and no other person or entity (other than the Buyer under this Agreement) has all necessary power any right, title, or interest in and authority to conduct the Business as the Business is now being conductedPurchased Shares.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power the right, power, legal capacity, and authority to enter into execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to perform its obligations under this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorizedAgreement. This Agreement constitutes a the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (and conditions, except to the extent that enforcement may be affected as limited by laws relating to bankruptcy, reorganization, insolvency and affecting creditors' ’ rights and by the availability of injunctive relief, specific performance and other or equitable remedies)principles generally. Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's The execution, delivery delivery, and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made by the Seller does not require the consent of a governmental entity or any third party.
(c) No person has any right to require at any time the transfer, creation, issue or allotment of any share, loan capital or other securities of the Company (or any rights or interest in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1them), 1980and no person has agreed to confer or has claimed any such right.
(d) No consentThe particulars set out in schedule 1 are true, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution accurate and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documentscomplete.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedcontemplated hereby, will (i) violate any statute, regulation, rule, judgment, order, decree, stipulation, or charge of any government, governmental agency, or court to which Seller is subject or (ii) conflict with or with, result in a breach of of, constitute a default under, result in the acceleration of, create in any of party the termsright to accelerate, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsterminate, modify, cancel, or of require any statute or administrative regulationnotice under any contract, agreement, or of any order, writ, injunction, judgment instrument to which Seller is a party or decree of any court or any governmental authority or of any arbitration awardby which it is bound.
(f) Seller's books, accounts and records areSeller has had the opportunity to examine all financial information pertaining to the Company which it has deemed relevant, and have beenhas had access to all other information with respect to the Company and its proposed business in order to make an evaluation of the value of the Purchased Shares. Seller has had the opportunity to ask such questions of the representatives of the Company as it deemed necessary for an evaluation of the Company, maintained the sale of the Seller’s Purchased Shares in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practicesthe Company, and all material transactions the Purchase Price attributable to which the Purchased Shares. Seller is or has been a party are properly reflected thereinfurnished with all materials relating to the Company which it has requested in writing. The decision of Seller to sell the Purchased Shares has been based solely upon the evaluation made by Seller and its investment advisors, if applicable. Stock Purchase Agreement 3 ShuffieldLowman.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flowsThe Company has at all times conducted its business in accordance with, and notes to financial statements (together with any supplementary information thereto) of Sellerhas acted in compliance with, all as of applicable laws and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsregulations.
(h) Complete and accurate copies Neither the Company, nor any of its directors nor any other person for whose acts the Company may be vicariously liable, is engaged or involved in any of the unaudited balance sheetfollowing matters: (i) any litigation, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven or any administrative, arbitration or other proceedings, claims, actions or hearings or (7)-month period ended July 31ii) any dispute with, 1997or any investigation, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereofinquiry or enforcement proceedings by, and the results of operations of Seller for the period covered by said statementsany governmental, in accordance with GAAP, consistently appliedregulatory or similar body.
(i) The Disclosure Schedule lists all existing Permits Company is not currently involved in nor has it been involved in any litigation or dispute and such list the Seller is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance aware of any requirements such litigation or condition of any Permit which has not dispute having been heretofore corrected; and
(iv) no occupant under a lease threatened or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewithbeing pending.
(j) Seller has not suffered or been threatened with any material adverse change No party is in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat default of any labor disputeagreement to which the Company is a party, no such default has been threatened, and there are no facts or circumstances likely to give rise to any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employeessuch default.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate No insolvency event has occurred in relation to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, Company or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)Seller.
(l) Seller is not a party toThere are four employees and one worker currently engaged by the Company, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under and they have all entered into standard form contracts with the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingCompany.
(m) Except as disclosed on There is no outstanding dispute under any employment legislation or otherwise between the Disclosure ScheduleCompany, there are no commissions any employee or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Dateworker.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationThe Company has complied with all its obligations under employment legislation. The foregoing representations, labor strikewarranties, dispute, slowdown or stoppage actually pending or, to and covenants under this Section 6 shall survive the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending Closing. Each party acknowledges and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans agrees that all warranties and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as representations provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by herein shall be given on an indemnity basis, meaning that the Seller shall indemnify and hold harmless the Purchaser from any losses, damages, costs, or expenses incurred as a result of any breach of the date hereof, warranties and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positionsrepresentations.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 2 contracts
Samples: Stock Purchase Agreement (ECD Automotive Design, Inc.), Stock Purchase Agreement (EF Hutton Acquisition Corp I)
Seller’s Representations and Warranties. Seller represents hereby makes the following representations and warrants warranties to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure ScheduleBuyer:
(a) Seller is a limited partnership in commendamTo the best of Seller’s actual knowledge, duly organizedwithout investigation, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power good and authority marketable fee simple title to conduct the Business as Property, subject only to the Business is now being conductedPermitted Exceptions.
(b) Except as set forth in To the Disclosure Schedulebest of Seller’s actual knowledge, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentpending, threatened or contemplated condemnation actions involving any portion of the Property and Seller has received no notice of any such action, except as noted in Section 14(b) below.
(c) From the execution of this Contract until the Closing, Seller has full partnership power shall (i) maintain the Property in substantially the same condition as presently exists, reasonable wear and authority to enter into and perform under (x) tear excepted, except as otherwise provided in this Agreement Contract, and (yii) all documents and instruments to be executed by Seller pursuant to this Agreement (collectivelyrefrain from entering into any contract or agreement affecting the Property or the title thereto which would extend beyond the Closing, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners without the prior written consent of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement Buyer which may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made withheld in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980Buyer’s sole discretion.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person Seller is required for Seller's execution and delivery not a ‘foreign person’ which would subject Buyer to the withholding tax provisions of this Agreement and Seller's Ancillary Documents and the consummation by Seller Section 1445 of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsInternal Revenue Code of 1986, as amended, and, at Closing, under regulations promulgated pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerThere are no leases, nor the consummation by Seller of the transactions herein contemplatedlicenses, will conflict with contracts or result in a breach agreements of any kind whatsoever affecting the Property except for (i) the Permitted Exceptions, (ii) ordinary service contracts entered into in the ordinary course of business, and (iii) certain “desk agreements”, for use of offices within the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardProperty.
(f) To the best of Seller's books’s actual knowledge, accounts and records arethere is no condition at, on, under or related to the Property presently or potentially posing a significant hazard to human health or the environment, whether or not in compliance with law, and have beenSeller has not engaged in any production, maintained in Seller's usualuse, regular and ordinary mannertreatment, in accordance with prudent business practices and generally accepted accounting practicesstorage, and all material transactions to which Seller is transportation or disposal of any Hazardous Materials (as hereinafter defined) on the Property, nor has there been a party are properly reflected thereinany release or threatened release of any Hazardous Materials, pollutant or contaminant into, upon or over the Property or any property adjacent thereto or into or upon ground or surface water at the Property or any property adjacent thereto.
(g) Complete and accurate copies Except for de minimis amounts of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed Hazardous Materials customarily used in connection with the operation of the Business or any restaurantProperty, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered stored any Hazardous Materials on the Property or been threatened with in any material adverse change in the businessunderground or above ground tanks, operations, assets, liabilities, financial condition pits or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller surface impoundments and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andnot used, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence placed or condition exists which, with the lapse of time, the giving of notice, stored any polychlorinated biphenol-containing or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed asbestos-containing materials on the Disclosure Schedule, there are no commissions Property or referral fees relating to the Business currently outstanding, nor will there be incorporated such materials into any such commissions buildings or referral fees outstanding, on interior improvements or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth equipment on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderProperty.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 2 contracts
Samples: Contract of Sale, Contract of Sale (Ballantyne Strong, Inc.)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to as of the best date hereof, and as of Seller's knowledge and except as set forth in the Disclosure ScheduleClosing:
(a) 5.1.1 Seller is a limited partnership in commendam, duly organizedformed foreign corporation, validly existing existing, and in good standing, under having the laws of the State of Louisiana. Seller has all necessary power capacity to sue and be sued in its own name, having full power, legal right and authority to conduct the Business carry on its business as the Business is now being currently conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipmentto execute, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into deliver and perform under (x) the provisions of this Agreement Agreement;
5.1.2 The execution, delivery, and (y) all documents and instruments to be executed performance by Seller pursuant to of this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will bethe sale of the Aircraft, has been duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners action on behalf of Seller so authorizedand do not conflict with or result in any breach of any of the terms or constitute a default under any document, instrument, or agreement to which Seller is a party;
5.1.3 The person executing this Agreement on behalf of Seller has full power and authority to do so;
5.1.4 Neither it nor any of its employees (or any assignee as defined in Article 8.7 hereof) are listed by the United States Department of Treasury on the Specifically Designated Nationals and Blocked Persons List or by the United States Department of Commerce on the Denied Persons List. There exists no United States prohibition on the transactions contemplated by this Agreement related to the identity, citizenship, location or business of Seller or to the purpose for which the Aircraft was previously used;
5.1.5 Seller has not entered into any other agreements under which it has agreed to sell or lease or otherwise encumber the Aircraft or any part thereof, other than this Agreement or any Liens that are to be discharged at Closing.
5.1.6 This Agreement constitutes a the legal, valid and legally binding obligation obligations of Seller, Seller and is enforceable against Seller in accordance with its terms (except subject to the extent that enforcement may be affected by laws relating to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency moratorium and similar laws affecting the enforceability of contractual obligations and creditors' ’ rights generally and by the availability application of injunctive reliefequitable principles by courts of competent jurisdiction, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there sitting at law or in equity; and
5.1.7 Seller is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance the lawful beneficial owner of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller Aircraft as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date execution of this Agreement, and at the time of the Closing, will cause the registered owner of the Aircraft, Owner Trustee, to convey good and marketable title to the Aircraft, free and clear of all Liens to Purchaser, and Seller will warrant and defend such title forever against all claims and demands whatsoever.
5.1.8 Seller has 136 full-time active employees in the operation paid any and all taxes, fees, duties, penalties, charges, invoices, and statements arising from any purchase, sale, delivery, transfer, possessions, use, storage, operation, consumption, or registration of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, Aircraft prior to the best of Seller's knowledgeClosing (“Amounts Owed”), threatenedprovided that, if Amounts Owed are not yet due, imposed, levied, or assessed against Seller or its Affiliatesthe Aircraft, Seller will pay such Amounts Owed when due, imposed, levied, or with respect assessed and will defend and hold Purchaser harmless from such Amounts Owed.
5.1.9 Seller has not entered into any agreement for commissions, brokerage fees or similar fees to the consummation be paid upon transfer of the transaction contemplated herebyAircraft that would become the obligation of Purchaser or a lien on the Aircraft nor does Seller have any agreement or arrangement to pay any consideration whatsoever, directly or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending orindirectly, to the best any employee, agent or independent contractor of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or servicesPurchaser.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 2 contracts
Samples: Aircraft Purchase Agreement (Blade Air Mobility, Inc.), Aircraft Purchase Agreement (Blade Air Mobility, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatand agrees with Purchaser, subject in all events to the best of Seller's knowledge qualifications or limitations to or on such representations and except warranties as are set forth out in the Disclosure Schedulethis Article 3, that:
(a) 3.1 Seller is a limited partnership in commendam, corporation duly organized, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller Texas, has all necessary full corporate power and authority to conduct the Business carry on its business as the Business now conducted, is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable authorized to hold title to the Purchased AssetsInterests and, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentacting as an operator of the Interests, is duly qualified to do so with the Railroad Commission of Texas, and has posted and maintained all bonds required by the Railroad Commission of Texas.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. 3.2 The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or not result in a the breach of any of the terms, terms or conditions of nor result in the breach of any of the terms or provisions conditions of nor constitute a default under the Articles of Incorporation nor the By-laws of Seller's Articles .
3.3 No approvals, consents or authorizations to the execution, delivery and performance of Partnership In Commendam this Agreement and the transactions contemplated hereby are required by any shareholder of Seller and the Board of Directors of Seller has duly authorized the execution and performance of this Agreement by Seller.
3.4 To the best of Seller’s knowledge, there are no liens, encumbrances or other organizational documentsmortgages covering any of the Lands and the xxxxx thereon, or and Seller is unaware of any statute or administrative regulationrights in any third parties which, or upon the passage of time, would permit the filing of any order, writ, injunction, judgment liens or decree encumbrances on the Lands or xxxxx.
3.5 Seller is unaware of any court demand letters, offset, development or drainage letters or claims asserted by any governmental authority or of any arbitration award.
third party (f) Seller's booksincluding, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, a lessor under any of the food Leases) or governmental authority against Seller in respect of the Leases or the production therefrom or attributable thereto nor are there any suits, actions, claims, investigations, audits, inquiries or proceedings, threatened or pending, against Seller in respect of taxes, governmental charges, duties or assessments, nor are there any matters under discussion with any governmental authority relating to taxes, governmental charges, duties, assessments or requirements for refunds or penalties or any claims for additional taxes, governmental charges, duties, assessments or refunds or penalties asserted by any governmental authority affecting the Interests or the production therefrom or attributable thereto.
3.6 Seller is selling the Interests to Purchaser AS IS, WHERE IS — WITH ALL FAULTS AND WITHOUT ANY WARRANTIES OR COVENANTS OF TITLE, EXPRESS OR IMPLIED, AND WITHOUT ANY REPRESENTATIONS CONCERNING TITLE TO THE INTERESTS NOT SPECIFICALLY SET FORTH IN THIS Article 3. Seller believes in good faith, but does not represent and beverage licenses required warrant, that during the time that Seller has claimed to sell and serve food and liquor; (iii) no default has occurred own interests in the Leases, Seller’s purchaser of hydrocarbons from the Leases, Sunoco Partners Marketing & Terminals, L.P. (“Sunoco”), has paid all royalties due observance under the Leases or performance of any requirements has suspended such royalty payments in Sunoco’s financial accounts under title or condition of any Permit which division order conditions determined solely by Sunoco to justify such suspense, and during the time that Seller has claimed to own interests in the Leases, Seller has not been heretofore corrected; andreceived any notice, written or otherwise, from Sunoco that any party has claimed that royalties are due and unpaid . To the Seller’s best information, Sunoco (or its predecessor or predecessors) likewise paid, or justifiably suspended, all royalties due under the Leases for the period of time before Seller acquired any interest in the Leases, but Seller cannot and does not warrant and represent that that is the case. Seller in good faith believes, but does not represent and warrant to Purchaser, that the Leases are in full force and effect.
3.7 To the best of Seller’s knowledge, none of the Interests is affected by any agreement or arrangement (ivincluding, but not limited to, any hedging agreement, take or pay, gas balancing, pipeline balancing or other prepayment agreement or production payment, other than the alleged production payments referred to in that certain “Limited Title Report” from the Xxxxxxxx Law Firm PLLC, dated June 24, 2010) which, as of the Effective Date, requires Seller to deliver Hydrocarbons produced from the Leases at some future time without then or thereafter receiving full payment therefor or at a specified price.
3.8 To the best of Seller’s knowledge, except for those Leases located in the Champion Xxxxxx Survey(the “Gulf Fee Leases”) there are no occupant under a lease consents required for Seller to transfer and convey all or concession agreement any portion of title to the Leases, and there are no rights in third parties which would preclude Seller from transferring all or any portion of title to the Leases.
3.9 Seller possesses all licenses, permits, certificates, orders, approvals and authorizations necessary from any governmental entity having jurisdiction to own and to operate the Interests and to carry on its business as now conducted, and Seller has not received any notice from any source governmental entity having jurisdiction that Seller does not possess any licenses, permits, certificates, orders, approvals and authorizations necessary to own the effect Interests and to carry on its business as now conducted.
3.10 The information furnished to Purchaser by Seller that there is lacking any Permit needed Seller received from its predecessors in connection with the operation ownership of the Business Interests or any restaurant, bar, gift shop or other operation connected therewith.
from third party sources (j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, such information including, without limiting the generality of the foregoingbut not limited to maps, the existence or threat of any labor disputeplats, or any material adverse change inwell logs, or loss ofcore analyses and sections, any relationship between Seller production data, operating expenses, net revenue interests and any of its customersworking interests, suppliers or key employees.
(k) The Disclosure Schedule correctly gas-condensate oil ratios, seismic and completed lists geological data, surface and describes all material contractssubsurface maps, leasesthird party reversionary rights, burdens and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(kencumbrances), and all other contracts is comprised of either the originals of such information or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements information as received by Seller and Seller did not withhold any information which if known by Purchaser would have caused Purchaser to credit less reserves to the Leases and the Lands or leasesto change the classification of such reserves, and, to Seller’s knowledge, there have been no changes subsequent to the furnishing of such information to Purchaser that would affect the current accuracy or completeness of the information heretofore furnished Purchaser in any material respect.
3.11 To the knowledge of Seller, there have been no claims, demands or allegations that the Interests, or a detailed description any part thereof, all as described have been operated in Section 4.3(k) violation of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees law relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending environmental conditions and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject)industrial hygiene, including, without limitation, lawsthe Resource Conservation and Recovery Act of 1976 (“RCRA”), statutes 42 U.S.C. §§ 6901, et seq., the Comprehensive Environmental Response, Compensation and regulations relating to equal employment opportunitiesLiability Act of 1980 (“CERCLA”), fair employment practices42 U.S.C. §§ 9601-9657, unfair labor practicesas amended by the Superfund Amendments and Reauthorization Act of 1986 (“XXXX”), terms of employmentthe Hazardous Materials Transportation Act, occupational health and safety49 U.S.C. §§ 6901, wages and hours and discriminationet seq., the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq., the Clean Air Act, 42 U.S.C. §§ 741, et seq., the Clean Water Act, 33 U.S.C. § 7401, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629, the Safe Drinking Water Act, 42 U.S.C. §§ 300F - 300J, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all similar federal, state and local environmental statutes, ordinances and the regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awardsnow or hereafter promulgated thereunder.
3.12 All reports required to be filed with the Railroad Commission of Texas by Seller have been properly filed (or will be filed when due, giving due regard to any extensions for filing that might be granted to Seller by the Railroad Commission of Texas), and are (or, in the common lawcase of filings made under extensions, which pertain will be) available on line, and will continue to hazardous substances be filed by Seller as required by any rule or materials, environmental matters or contamination regulation of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsthe Railroad Commission of Texas.
Appears in 2 contracts
Samples: Purchase Agreement (Vanguard Energy Corp), Purchase Agreement (Vanguard Energy Corp)
Seller’s Representations and Warranties. Each Seller for itself and not on behalf of the other Sellers, represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure ScheduleBuyer:
(a) Each Seller is a limited partnership in commendam, duly organizedpartnership, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power Delaware, and authority is, to conduct the Business as extent necessary, qualified to do business in the Business State where its respective Real Property is now being conductedlocated.
(b) Except as set forth in Each entity comprising Seller has the Disclosure Schedule, authority to execute this Contract and to perform its obligations under this Contract. The person executing this Contract on behalf of Seller holds good and marketable title is duly authorized to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentdo so.
(c) Seller has full partnership power Other than as listed on EXHIBIT K attached hereto and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes made a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 part hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andpending or, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of noticeovertly threatened litigation, or bothother process, private or regulatory, affecting the happening of Property or any further event or conditionentity comprising Seller that, if decided adversely, would become have a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed Material Adverse Effect on the Disclosure Schedule, there are no commissions use or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare Property or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(qd) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions requirements of all Executive Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the ORDER) and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (OFAC) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutesother rules, regulations, ordinanceslegislation, rulesor orders are collectively called the ORDERS).
(e) Neither Seller nor any beneficial owner of Seller nor any Person who provides loans to Seller:
(i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the LISTS);
(ii) is an individual, regulations and policiescorporation, all court orders and decrees and arbitration awardspartnership, and the common limited liability company, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity (collectively, a PERSON) who has been determined by competent authority to be a Person with whom a U.S. Person is prohibited from transacting business, whether such prohibition arises under U.S. law, regulation, executive orders or any lists published by the United States Department of Commerce, the United States Department of Treasury or the United States Department of State including any agency or office thereof;
(iii) is owned or controlled by, or acts for or on behalf of, any Person on the Lists or any other Person who has been determined by competent authority to be a Person with whom a U.S. Person is prohibited from transacting business, whether such prohibition arises under U.S. law, regulation, executive orders or any lists published by the United States Department of Commerce, the United States Department of Treasury or the United States Department of State including any agency or office thereof; or
(iv) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities, any crimes which pertain in the United States would be predicate crimes to hazardous substances money laundering, or materials, environmental matters or contamination any violation of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Anti-Money Laundering Laws.
Appears in 2 contracts
Samples: Contract of Sale/Contribution (Education Realty Trust, Inc.), Contract of Sale/Contribution (Education Realty Trust, Inc.)
Seller’s Representations and Warranties. Seller represents does affirmatively hereby represent and warrants to Purchaser that, warrant to the best of Seller's knowledge and except as set forth in the Disclosure ScheduleBuyer that:
(a) A. Seller is a limited partnership in commendamKentucky non-profit corporation, duly organizedincorporated, validly existing and in good standing, standing under the laws of the State Commonwealth of Louisiana. Seller has all necessary power Kentucky and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into this Agreement, to carry out its obligations hereunder and perform under (x) to sell the Property, subject to the consents and approvals described in Section 14 below;
B. The execution and delivery of this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, Buyer and Seller's Ancillary Documents will be, the carrying out of the provisions hereof by Seller have been duly authorized by all necessary partnership action(s)action of Seller, and duly executed and delivered by general partners of Seller so authorized. This this Agreement constitutes a the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms terms;
C. Seller (except i) owns fee simple title to the extent that enforcement may be affected by laws relating Property, and (ii) has complete and full authority to bankruptcyexecute this Agreement and to convey to Buyer fee simple title to the Property, reorganizationwhich is free and clear of all liens, insolvency and creditors' rights and by the availability of injunctive relief, specific performance encumbrances and other equitable remedies). Except as contemplated under Section 6.1 hereofexceptions to title except for easements, there is no lawrights-of-way, rulecovenants, regulation conditions, restrictions and stipulations of record;
D. Seller has not granted and/or entered into any contract, commitments or ordinance other agreements, including, without limitation, any right of first refusal or option to purchase, with or in favor of any governmental body third party with respect to the Property. There are no leases or agency prohibiting other occupancy agreements or arrangements affecting Seller's execution’s interest in the Property;
E. Subject to obtaining all necessary consents and approvals from the Lenders (as defined in Section 14F below), delivery compliance with this Agreement and performance the consummation of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration hereby will not conflict with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or they result in a breach of or constitute a default under, any of the termsagreement, conditions or provisions of Seller's Articles of Partnership In Commendam indenture or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements undertaking to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to by which Seller is a party, are in full force bound;
F. Subject to obtaining all necessary consents and binding upon approvals from the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given Lenders (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described defined in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k14F below).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation consent or proceeding, approval required of any governmental authority or any other third party in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, order to fully effect the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation Closing of the transaction contemplated herebyby this Agreement;
G. To Seller’s knowledge, neither the Seller nor the Property is subject to any lawsuit, administrative action, arbitration or other proceeding pending or threatened to be brought by any governmental agency or other persons against the Seller or the Property, or the use of the Purchased Assets (whether used by Purchaser after the Closing otherwise enjoining, restraining or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against restricting Seller with respect to the quality transfer of or absence of or defects Seller’s interest in Seller's products or services.the Property;
(q) H. Seller is has not a party toreceived, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its propertiesor affecting the Property or any portion thereof, assets(i) any written notice of any pending or threatened condemnation, personnel zoning or business activities.
other governmental proceeding; (rii) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices notice of violation of any applicable laws or ordinances; or (iii) claim by any third party, and to Seller’s knowledge no such proceedings, violations or claims have been threatened or are pending; and
I. Other than the items described in (i) the Property Management Plan pertaining to the development of the foregoing Property dated November 2, 2017 issued by the Kentucky Energy and Environment Cabinet regarding development of the Property (which Seller hereby acknowledges is contained in Seller’s files), (ii) the Phase I Environmental Assessment of the Property prepared by Xxxxxxxx Xxxxxxxxxx, Inc. dated July 19, 2017 (which Seller hereby acknowledges is contained in Seller’s files), and (iii) the Limited Phase II Environmental Site Assessment Report of the Property prepared by Xxxxxxxx Xxxxxxxxxx, Inc. dated September 19, 2017 (which Seller hereby acknowledges is contained in Seller’s files), Seller has not received within any written notice from any governmental authority relating to any violation or alleged violation of any of governmental codes, ordinances, laws, rules, regulations or private restrictions affecting the past three years are attached to the Disclosure Schedule.
(s) SellerProperty, the Purchased Assets and the Business are in compliance with all including any violation of applicable zoning ordinances or any Environmental Laws (as herein hereinafter defined) and any Environmental Permits (as herein defined)which has not been cured. A copy of any noticeTo Seller’s actual knowledge, citation, inquiry or complaint which Seller has received in the past three years of any alleged no violation of any Environmental Law or Environmental Permit is attached Laws exist with respect to the Disclosure ScheduleProperty. Seller possesses “Environmental Laws” means all Environmental Permits laws or regulations which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached relate to the Disclosure Schedulemanufacture, processing, distribution, use or storage of Hazardous Materials (as hereinafter defined). As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.“Hazardous Materials” shall mean:
Appears in 1 contract
Samples: Sale and Purchase Agreement
Seller’s Representations and Warranties. Seller Seller, Hearthstone and Long Horn (but Long Horn only with regard to Section 5.2(a) and Section 5.2(kk)) each hereby represents and warrants to Purchaser that, to as follows (with the best understanding and agreement that the representations and warranties of Seller's knowledge each party constituting Seller set out below or otherwise in this Agreement is joint and except as set forth in the Disclosure Schedule:several):
(a) Each entity comprising Seller and Hearthstone is a limited partnership in commendam, duly organized, validly existing and in good standing, standing under the laws of the State its state of Louisiana. Seller formation and has all necessary requisite partnership power and authority to conduct execute, deliver and perform this Agreement, and to consummate the Business as transactions contemplated hereby. Long Horn is an exempted Company with limited liability validly existing and in good standing under the Business is now being conductedlaws of its state of formation and has all requisite exempted company power and authority to execute, deliver and perform this Agreement, and to consummate the transactions contemplated hereby.
(b) Except as set forth in the Disclosure ScheduleThis Agreement has been duly authorized, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionsexecuted, and all items delivered by Seller and Hearthstone, and constitutes the legal, valid, and binding obligation of EquipmentSeller and Hearthstone and is enforceable against Seller and Hearthstone in accordance with its terms, Inventory and other personal property have been fully paid for, except to the extent that normal business practice permitssuch enforceability may be limited by bankruptcy, except those items identified on reorganization, insolvency, or similar laws of general applicability governing the Disclosure Schedule which are subject to installment payments enforcement of the rights of creditors or leases and with respect to which there are no installments due which are delinquentby the general principles of equity (regardless of whether considered in a proceeding at law or in equity).
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance No consent of any governmental body creditor, investor, judicial or agency prohibiting Seller's administrative body, Health Department or other Governmental Authority, or other party to such execution, delivery and or performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement Seller or Hearthstone is being made in connection with the winding-up of Seller required except as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980set forth herein.
(d) No consentThe execution, authorizationdelivery, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery performance of this Agreement by Seller and Seller's Ancillary Documents Hearthstone and the consummation by Seller and Hearthstone of the transactions contemplated by this Agreement and Seller's Ancillary Documentshereby will not violate or conflict with or constitute a default under any term of the organizational documents of Seller or Hearthstone.
(e) Neither Seller owns the execution Transferred Personal Property and delivery of this Agreement the leasehold estates created by the NHP Lease. The Property, together with any property owned by NHP and Seller's Ancillary Documents leased to Seller pursuant to the NHP Lease, includes all property being used to operate the Facilities as assisted living and dementia care facilities. The Facilities are managed by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardManager.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure ScheduleSchedule 5.2(f), there is no litigation or proceeding, in law or in equity, Seller has completed all repair and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation remediation of the transaction contemplated hereby, or the use Deferred Maintenance Items (as that term is defined in Section 8.2(b) of the Purchased Assets (whether used NHP Lease) or any other items referenced by Purchaser after the Closing any so-called “structural” or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder“property condition” reports regarding any and all Facilities.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capital Senior Living Corp)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) That no material, data or information is or shall be deleted, secreted or withheld from the items listed on Exhibit "A";
(b) That there are no liens, encumbrances, indebtedness or suits threatened or filed in relation to the assets made the subject of this agreement;
(c) That Seller is a limited partnership in commendam, duly organized, validly existing existing, limited liability company and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.Texas,
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery That the sale of the assets made the subject of this Agreement and Seller's Ancillary Documents and the consummation agreement has been fully authorized by Seller one hundred (100%) percent of the transactions contemplated by this Agreement and Seller's Ancillary Documents.its Members;
(e) Neither That the execution and delivery indebtedness of the Seller made a subject of this Agreement and Seller's Ancillary Documents by Seller, nor agreement was incurred in the consummation by Seller ordinary course of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.business;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party That the items listed on Exhibit "A" are properly reflected thereinfully operational and/or functional.
(g) Complete That Purchaser has made full and accurate copies complete disclosure to Seller, as well as its Members, as to Purchaser's operations, activities, sales, organizational structure, equity structure, sales prospects, goals, plans, financial condition including indebtedness, present and anticipated stock offerings, number of the audited balance sheetscommon shares outstanding, statements of income and retained earnings, statements of cash flowsfinancial statements, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsother material information.
(h) Complete Seller shall indemnify and accurate copies hold Purchaser, its officers, directors, or employees, harmless from any suits or actions, of whatsoever nature, regarding, related to or concerning the unaudited balance sheetassets made the subject of this agreement including, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food Marketing Agreement.
(i) That the data and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred information contained in the due observance items listed on Exhibit "A" shall not be duplicated or performance distribute to, used or implemented by any third party, for any reason, without the express, wntten consent of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewithPurchaser.
(j) Seller has not suffered or been threatened with shall execute any material adverse change in and all documents reasonably necessary to effect the business, operations, assets, liabilities, financial condition or prospects intent of the Business, this Agreement including, without limiting the generality of the foregoingbut not limited to, the existence or threat of any labor disputea XXXX OF SALE, or any material adverse change in"GENERAL CONVEYANCE, or loss ofTRANSFER AND ASSIGNMENT", any relationship between Seller and any of its customers, suppliers or key employees.CANCELLATION/REVOCATION OF ASSUMED NAMES,
(k) The Disclosure Schedule correctly and completed lists and describes all material contractsThere are no actions, leasessuits, and agreements to which Seller is a party and which relate claims, arbitration proceedings or government investigations or inquiries pending, or to the conduct knowledge of Seller threatened, against Seller seeking to prevent or delay the consummation of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)transactions contemplated hereby.
(l) The Members of Seller is not a party to, are or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under have been actively involved in the terms business affairs and/or activities of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on Seller shall indemnify and hold Purchaser harmless for any tax liability accruing to Seller or its Members regarding the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing DateShares.
(n) With respect to employees Seller shall indemnify and hold Purchaser harmless from any and all claims or causes of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationaction by its Members, labor strike, dispute, slowdown or stoppage actually pending or, relating to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each issuance of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction Shares contemplated hereby, herein or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderMarketing Agreement.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulewarrants:
(a) 5.1.1 Seller is a limited partnership in commendamcorporation duly organized and validly existing, duly organized, validly existing and in good standing, under the laws of the State Commonwealth of LouisianaPennsylvania. Seller has all necessary the corporate power and authority to conduct the Business own its property and to carry on its business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good conducted and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) to carry out the terms of this Agreement.
5.1.2 The execution and delivery of this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, the consummation of the transactions contemplated hereby have been duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners corporate action on behalf of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of SellerSeller is not subject to any charter, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no by-law, rulelien, regulation or ordinance encumbrance of any kind, agreement, instrument, order, or decree of any court or governmental body or agency prohibiting Seller's execution, delivery and performance (other than any governmental approval required) which would prevent consummation of the transactions contemplated by this Agreement. .
5.1.3 The sale Segregated Lease is not subject to any preferential right to purchase or right of first refusal in favor of any third party.
5.1.4 Seller's operations on the Segregated Lease have been conducted as a prudent operator and in accord with all applicable rules or regulations of governmental bodies.
5.1.5 Seller has the right to assign the Physical Assets, except as to contract rights of which it has previously advised Buyer.
5.1.6 Seller has incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of this transaction contemplated by this Agreement for which Buyer shall have any responsibility whatsoever.
5.1.7 No suit, action or other proceeding is being made pending or threatened before any court or governmental agency which might result in connection with the winding-up of Seller as contemplated under Section 13.02(f) impairment or loss of Seller's Articles title to any part of Partnership In Commendam dated as the Assets or the value thereof or which might hinder or impede the operation of May 1the Assets, 1980and Seller shall promptly notify Buyer of any such proceeding arising or threatened prior to the Closing.
(d) No consent, authorization, order 5.1.8 Seller shall use its best efforts to take or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution cause to be taken all such actions as may be necessary and delivery advisable to consummate and make effective the sale of this Agreement and Seller's Ancillary Documents the Assets and the consummation by Seller of the other transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller assure that as of the date thereofof the Closing it will not be under any material corporate, and legal or contractual restriction that would prohibit or delay the results timely consummation of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedsuch transactions.
(i) 5.1.9 The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all assignment of the Permits currently necessary for the ownership and operation Segregated Lease shall be made without any warranty of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance title of any requirements kind, express or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source implied, except that Seller shall warrant and defend good and defensible title to the effect that there is lacking any Permit needed in connection with Segregated Lease unto Buyer against every person whomsoever lawfully claiming or to claim the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leasesSegregated Lease, or a detailed description thereofportion thereof by, all as described in Section 4.3(kthrough or under Seller, but not
5.1.10 Seller shall warrant title to the Physical Assets solely to the extent delivery and acceptance (actual or constructive) of any such Physical Assets by Seller have occurred, and to the Disclosure Schedule. extent Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed has rights and entitlements to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument receive Physical Assets under the terms of which performance by Seller according existing service contracts and purchase orders pertinent to the terms of this Agreement will be a default or an event of accelerationsuch Physical Assets. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, or whereby timely performance by Seller according to the terms of this Agreement may be prohibitedTHE PHYSICAL ASSETS ARE TO BE SOLD AS IS, prevented or delayedAND SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED IN FACT OR BY LAW WHETHER OF OPERATING CONDITION, SAFETY, COMPLIANCE WITH GOVERNMENT REGULATIONS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, CONDITION OR OTHERWISE, CONCERNING ANY OF THE PHYSICAL ASSETS. If any such agreement existsALL XXXXX, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingPERSONAL PROPERTY, MACHINERY, EQUIPMENT AND FACILITIES THEREIN, THEREON AND APPURTENANT THERETO ARE TO BE CONVEYED BY SELLER AND ACCEPTED BY BUYER PRECISELY AND ONLY "AS IS, WHERE IS.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date" SELLER DOES NOT WARRANT THE PHYSICAL ASSETS FREE FROM REDHIBITORY VICES OR DEFECTS.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Asset Sale Agreement (Freeport McMoran Sulphur Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollowing:
(a) Seller To Seller's knowledge, there is a limited partnership no present plan, study or effort by any governmental authority or agency or any private party or entity which in commendam, duly organized, validly existing and in good standing, under any way affects or would affect the laws continued authorization of the State current use and operation of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedPremises.
(b) Except as set forth in disclosed herein, there is no pending, or to Seller's knowledge threatened, litigation which does or would materially affect the Disclosure Scheduleownership, Seller holds good and marketable title use, maintenance or operation of the Premises or Seller's ability to the Purchased Assets, free and clear fulfill all of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentits obligations under this Agreement.
(c) Seller has full partnership power no knowledge of receipt of any written notice of a claim of non-compliance with respect to the Premises as to any laws, ordinances, rules and authority regulations, including, but not limited to, those relating to enter into environmental, zoning, land use and perform under (x) this Agreement division, building, fire, health and (y) all documents safety matters of any governmental or any agency, body or subdivision thereof relating to the operation, ownership or use of the Premises. Seller further represents that it is in the process of removing an underground storage tank on the subject Premises and instruments agrees to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller remove the same in accordance with all Federal, State and municipal rules and regulations. If a No Further Action Letter is required from the NJ Department of Environmental Protection, then Seller agrees to take all actions necessary to obtain the same at its terms own expense.
(except to the extent that enforcement may be affected by laws d) Seller has not entered into any, and there are no presently effective leases relating to bankruptcy, reorganization, insolvency and creditors' rights and by any portion of the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's Premises.
(e) The execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement (I) does not and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will not conflict with or result in a breach of any condition or provision of, or constitute a default under, or result in the acceleration, creation or imposition of any lien, charge or encumbrance upon the Premises by reason of the termsterms of any contract, conditions mortgage, lien, agreement, indenture, instrument, decree or provisions judgment to which the Seller is a party or which is or purports to be binding upon Seller or which affects or purports to affect the Premises, and (ii) to the knowledge of Seller's Articles of Partnership In Commendam or other organizational documents, or of does not and will not breach any statute or administrative regulationregulation of any governmental authority, including, but not limited to, applicable zoning laws and regulations, or of any order, writ, injunction, judgment judicial or decree of any court administrative order relating to the Premises or any governmental authority or of any arbitration awardto Seller.
(f) Seller has no knowledge of any understanding or agreement with any taxing or assessing authority respecting the imposition or deferment of any taxes or assessments respecting the Premises. To Seller's booksknowledge, accounts there are no improvement district or other assessments, special or otherwise, burdening the Premises, whether or not a lien thereof, nor has Seller received notice of the establishment of any such district or assessment. Seller has received no notice and records are, and have been, maintained has no knowledge of any proposed increase in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected thereinthe assessed valuation of the Premises.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to To the best of Seller's knowledge, all buildings, driveways and other improvements on the subject property are within its boundary and no default by improvements on adjoining properties extend across the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) boundary line of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)subject premises.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. 7.1 Seller hereby represents and warrants to Purchaser thatBuyer, to the best of Seller's knowledge and except covenants with Buyer, and at Closing will again represent, warrant and covenant, as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) 7.1.1 That this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, Seller and is enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.terms;
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither 7.1.2 That the execution and delivery of all instruments and documents required hereunder to be obtained or authorized by Seller in order to consummate this transaction have been or will be obtained and authorized as so required;
7.1.3 That there are no actions, suits, claims, demands or proceedings of any kind or nature, legal or equitable, affecting the Property or any portion thereof, and that there are no liens, special assessments, easements, reservations, restrictions, covenants or encumbrances other than matters of public record or matters disclosed by Seller affecting the Property, except that Seller expressly reserves construction and other easements pending completion of the 00xx Xxxxxx viaduct. The location(s) of said easement(s) are unknown at this time, but are reserved at the sole discretion of the City of Joplin.
7.1.4 That there are no other persons or entities claiming by, through or under Seller who have any rights to acquire the Property or have any rights therein or claims thereto or for any portion thereof except as may appear of public record;
7.1.5 That, except as disclosed in the public records on the Effective Date, there are no outstanding city, county, state or federal tax liens, or claims or demands against Seller which do constitute or may eventually constitute a lien against the Property;
7.1.6 That Seller shall not take any action during the term of this Agreement which would hamper or impede the consummation of this purchase and sale transaction or which would cause any of the representations and/or warranties made in this Paragraph 8.1 to become untrue, inaccurate or incomplete in any respect;
7.1.7 That Seller shall undertake those acts necessary to ensure that the representations and warranties set forth herein remain true, accurate and complete during the term of this Agreement and Seller's Ancillary Documents by Sellerwill notify Buyer promptly of any occurrence, nor notification or variation in the consummation by representations or warranties contained herein;
7.1.8 That Seller has received no notification, written or otherwise, from any individual, corporation, governmental agency, bureau or authority which pertains to or concerns the environmental or ecological condition of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.Property;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and7.1.9 That, to the best of Seller's ’s knowledge, no default there presently does not exist and that there has never existed on, above, or under the Property any Hazardous Material.
7.1.9.1 Seller agrees that Hazardous Materials shall mean: (a) any "hazardous waste" as defined by the other contracting parties has occurred thereunderResource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et. No eventseq.), occurrence or condition exists which, with the lapse of as amended from time to time, the giving of notice, or both, or the happening of and regulations promulgated thereunder; (b) any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all "hazardous substance" as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired defined by the Seller prior to the Seller's hiring a person not previously employed by the SellerComprehensive Environmental Response, Compensation and Liability Act of 1980, known as “CERCLA” (42 U.S.C. Section 9601 et. seq.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-as amended from time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awardstime, and the common lawSuperfund Amendments and Reorganization Act of 1986, as amended and regulations promulgated thereunder; (c) asbestos; (d) polychlorinated biphenyls; (e) petroleum, petroleum by- products or petroleum constituents; (f) any substance the presence of which pertain to hazardous substances or materials, environmental matters or contamination of is prohibited by any type whatsoevergovernmental regulation; and "Environmental Permits" means licenses(g) any other substance which by any governmental regulation requires special handling in its collection, permitsstorage, registrationstreatment, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsdisposal.
Appears in 1 contract
Samples: Option Agreement
Seller’s Representations and Warranties. Seller SELLER represents and warrants to Purchaser BUYER, effective as of the date of this Agreement and also effective as of the date of closing (subject to any subsequent notice from SELLER as hereinafter set forth), that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is SELLER has not granted or entered into any options, rights of first refusal, or other contracts which give any other party a limited partnership right to purchase or acquire any interest in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.Premises;
(b) Except as set forth in the Disclosure ScheduleSELLER has not entered into leases, Seller holds good and marketable title to the Purchased Assetslicenses, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind occupancy agreements (whether written or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and oral) in effect with respect to which there are no installments due which are delinquent.any part of the Premises;
(c) Seller SELLER has full partnership the right, power and authority to enter into and perform under (x) this Agreement and (y) all documents to sell the Premises in accordance with the terms and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents")conditions hereof. This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly when executed and delivered by general partners of Seller so authorized. This Agreement constitutes SELLER, will be a valid and legally binding obligation of Seller, enforceable against Seller SELLER in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.terms;
(d) No consentTo SELLER’S actual knowledge, authorization, order SELLER has not released or approval of, discharged any Hazardous Materials on or filing or registration with, from the Premises; any governmental authority underground storage tanks or other person subsurface facilities holding petroleum or oil products have been removed from the Premises; no chlordane has not been used as a pesticide on the Premises; and there is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and not now any asbestos in the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.Premises;
(e) Neither the execution and delivery SELLER nor any person, or entity that directly owns a ten percent (10%) or greater equity interest in it nor any of this Agreement and Seller's Ancillary Documents by Sellerits officers, nor the consummation by Seller directors or managing members is a person or entity (each, a “Prohibited Person”) with whom U.S. persons or entities are restricted from doing business under regulations of the transactions herein contemplated, will conflict with or result in a breach Office of any Foreign Asset Control (“OFAC”) of the termsDepartment of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statue, conditions executive order (including Executive Order 13224 (the “Executive Order”) signed on September 14, 2001 and entitled "Blocking Property and Prohibiting Transactions with Person Who Commit, Threaten to Commit, or provisions of Seller's Articles of Partnership In Commendam Support Terrorism"), or other organizational documentsgovernmental action, and SELLER activities do not violate the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or of any statute the regulations or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or any governmental authority or of any arbitration award.orders promulgated thereunder (as amended from time to time); and
(f) Seller's booksNo petition in bankruptcy (voluntary or otherwise), accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and assignment for the years ended December 31benefit of creditors, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements petition seeking reorganization or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop arrangement or other operation connected therewith.
(j) Seller has action under Federal or State bankruptcy laws is pending against or contemplated by SELLER. SELLER will not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andcause nor, to the best of Seller's knowledgeSELLER’S ability, no default permit any action to be taken which would cause any of SELLER’S representations and warranties to be false as of closing, and in any event shall notify BUYER promptly of any change in these representations and warranties. SELLER shall confirm these representations at closing, which will not survive the closing. Notwithstanding anything herein or in any other agreement or document to the contrary, it is acknowledged and agreed to by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of that any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) and all references to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending orSELLER’S knowledge, to the best of Seller's SELLER’s knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out to SELLER’s actual knowledge, and words of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost similar import are intended to refer to the Seller except for payments required under Seller's employee benefit plansactual knowledge of Xxxxxxx Xxxxxxxx, employee welfare plans the current Town Administrator, without any duty or obligation of inquiry, and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior not to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list actual or constructive knowledge of all employees who are employed by the Seller as of the date hereofany board, and said list correctly reflects their salariescommission, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission officer or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller person or its Affiliates, party representing or with respect to the consummation of the transaction contemplated hereby, acting by or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderthrough SELLER.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents and --------------------------------------- warrants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under has the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good execute and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of deliver this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(pb) This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding obligation of Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, or similar laws relating to creditors rights generally, and by other principles of law of general applicability limiting a party's remedies.
(c) Seller has not hypothecated, sold, leased, mortgaged or otherwise disposed of or encumbered any rights which it acquired from Lamalo N.V. in 1988 in the DIC Library, except in the normal course of licensing exploitation rights therein directly or indirectly through C&D or as disclosed in Exhibits "A" and "B" hereto, or as otherwise permitted herein. All rights in and to the DIC Library Assets transferred pursuant to this Agreement are free in all material respects of any and all liens, security interests, claims and encumbrances, except as otherwise noted in Exhibits "A" and "B", and except for claims and encumbrances created pursuant to agreements for the exploitation of the DIC Library Assets entered into in and arising under the ordinary course of business.
(d) With respect to the period of time following the date of acquisition of the DIC Library from Lamalo N.V., except as set forth in Exhibits "A" and "B," Seller is not in material breach or default of any license, lease, or other agreement exploiting the DIC Library for which accounts receivable are to be assigned pursuant to this Agreement, which breach has not been disclosed in writing to Buyer, and will not commit a breach or act of default prior to the Closing.
(e) There are no material claims pending or, outstanding agreements with or commitments or promises to third parties that were created in the best period of Seller's knowledge, anticipated or threatened against Seller time following the date of acquisition of the DIC Library from Lamalo N. V. with respect to the quality DIC Library other than those set forth in Exhibits "A" and "B" and other than agreements for the exploitation of or absence the DIC Library Assets entered into in the ordinary course of or defects in Seller's products or servicesbusiness.
(qf) Other than an agreement which is the sole responsibility of Seller, Seller has not engaged a broker for the sale represented by this Agreement. Seller agrees to indemnify and hold Buyer harmless from any broker's or finder's fee or alleged broker's or finder's fee incurred by Seller, or any claim by any party that Seller entered into an agreement calling for a broker's or finder's fee.
(g) Except as set forth in Exhibits "A" and "B," and the contracts referred to therein, no special consents are required to be obtained by Seller to enable it to carry out the transactions contemplated by this Agreement.
(h) Seller makes no representation or warranty as to any matter relating to the chain of title to the DIC Library of Lamalo N.V. or its predecessors-in-interest.
(i) The records and documents supplied to Buyer's representatives pertaining to Seller's, and Seller's assigns', sublicensees', and designees' exploitation of the DIC Library, are complete in all material respects, and, to the extent prepared by Seller or C&D, are accurate in all material respects.
(j) Except for one contract for the exploitation of the DIC Library in the Bahamas made directly by Now, all contracts for the exploitation of the DIC Library were made by or through C&D.
(k) With respect to the second sentence of Section 3, Seller is not a party toaware of any liabilities which have not been disclosed in writing to Buyer, or bound byother than liabilities related to delivery problems and obligations pursuant to written license agreements with exhibitors, any decreebroadcasters, orderagents, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discriminationsubagents, and zoning ordinances home video distributors of programs in the DIC Library that have been made available to Buyer's representatives for their review and building codesinspection. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached Written disclosures made to SIP, as defined below, pursuant to the Disclosure ScheduleC&D Acquisition, as defined below, shall be deemed to be written disclosures to SINV hereunder. The above representations and warranties shall survive the Closing.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Agreement for the Purchase of Film Assets (Fox Kids Worldwide Inc)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to as of the best of Seller's knowledge Effective Date and except as set forth in the Disclosure ScheduleClosing Date:
(ai) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds owns good and marketable fee simple title to the Purchased AssetsProperty, free and clear no party has the right or option to acquire all or any portion of all mortgagesthe Property, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, Purchaser pursuant to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.terms of this Agreement,
(cii) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(diii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iv) there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(v) Seller has no knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(vi) Seller has no knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vii) there are no service contracts, equipment leases and/or maintenance agreements affecting the Property, other than Contracts, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below,
(viii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(ix) there are and will be no parties in possession of, without limitation: employment or claiming any possession to, any portion of the Property, other than tenants under Leases, if any, hereafter approved in writing by Purchaser pursuant to Section 5.4 below, as reflected on the rent roll to be provided by Seller to Purchaser at Closing (the “Rent Roll”),
(x) at Closing there will be no unpaid bills or claims in connection with any construction or repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(xi) the Rent Roll shall be true, correct and employment-related agreements; covenants not complete in all material respects and no concessions, discounts or other periods of free or discounted rent shall have been given other than those reflected on such Rent Roll,
(xii) all information delivered by Seller to compete; loan agreementsPurchaser pursuant to Section 4.1 hereof, notesis a true, correct and complete copy of the original thereof in all material respects,
(xiii) Seller has no knowledge, and security agreements (other than noteshas received no notice, loan agreements and related security documents that are being satisfied regarding any environmental contamination on, at or prior adjacent to Closing); sales representativethe Property,
(xiv) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, distribution, franchise, advertising and similar agreements; concession except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or occupancy agreements; leases and subleases insurer,
(xv) there are no employment agreements of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xvi) the Improvements will be constructed in full force substantial conformity in all material respects with the Plans and binding upon the parties thereto. No default by Specifications, and Seller has occurred thereunder andno knowledge of, to and has not received, written notice of defects in the best of Seller's knowledgedrainage systems, no default by the foundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) portions of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).Property,
(lxvii) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereofof Completion of the Work, Seller shall have no knowledge of, and said list correctly reflects their salariesshall not have received, wageswritten notice of the unremediated presence or suspected presence on the Improvements of any form of mold, other compensation (other than benefits under the employee welfareincluding those producing mycotoxins, benefit specifically including, but not limited to, Aspergillus, Penicillium, and similar plans), dates of employment and positions.Stachybotrys,
(vixviii) As of the date of this Agreementexcept as disclosed in that certain Phase I Environmental Site Assessment Report dated February 12, 2016 by Partner Engineering and Science, Inc. for Project No. 16-155464.1, Seller has 136 full-time active employees in the operation of the Businessno knowledge, and 31 parthas received no notice, of underground storage tanks located on or under the Property or unremediated conditions on, at or relating to the Property which are in non-time employees.
compliance with “Environmental Requirements” (viias defined below) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
“Hazardous Materials” (oas defined below) Except as set forth on the Disclosure Schedule, there is no litigation or proceedingon, in law or under the Property in equityquantities that require reporting, and there are no proceedings investigation or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all remediation under Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.Requirements,
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Seller’s Representations and Warranties. Seller represents represents, ------------------------------------------ warrants and warrants covenants to Purchaser that, to Buyer that as of the best of Seller's knowledge date hereof and except as set forth in the Disclosure ScheduleClosing Date:
(a) Seller is a limited partnership in commendamThere are no Leases, duly organized, validly existing and in good standing, under the laws tenancies or other rights of occupancy or use for any portion of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedPremises.
(b) Except Other than as set forth disclosed in Section 9, above, and with the exception of the rights of mortgagees in the Disclosure Scheduleevent of a foreclosure of the property of which the Premises are a part, Seller holds good and marketable title is not a party to the Purchased Assetsany written agreement with any person, free and clear of all mortgagesfirm, optionscorporation, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of entity that has any kind right or nature other than option to acquire the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments Premises or leases and with respect to which there are no installments due which are delinquent.any portion thereof;
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is There are no law, rule, regulation or ordinance judicial proceedings of any governmental body type which have been instituted or agency prohibiting Seller's execution, delivery and performance of which are pending or threatened against the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.Premises;
(d) No consentTo the best of the Seller's actual knowledge, authorizationthere is not pending, order or approval nor has Seller received a written notice from a public authority of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller a contemplated condemnation of the transactions contemplated by this Agreement and Seller's Ancillary Documents.Premises or any part thereof;
(e) Neither There are and shall be no liens or claims against Seller applicable to the Premises for federal withholding taxes or estate taxes, or any other undischargeable taxes or charges whatsoever except ad valorem general real estate taxes;
(f) Seller has received no notice of any fact or condition that exists which would result in the termination of access to the Premises from adjoining public or private streets or ways or which would result in discontinuation or refusal of service by any applicable utility providers of adequate sewer, gas, electric, telephone or other utility service to the Premises;
(g) Other than as disclosed in Section 9, above, Seller's execution of and delivery of performance under this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will shall not constitute a conflict with or result in a breach of any of the termswritten agreement, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsunderstanding, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and to which relate any part of the Premises may be bound;
(h) Other than as disclosed in Section 9, above, pending the Closing, Seller agrees that Seller will not transfer the Premises except as herein expressly contemplated or create any easements, liens, or other encumbrances with respect to the conduct of the BusinessPremises, includingexcept with Buyer's prior written consent, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied except for mortgages or trust deeds which shall be released at or prior to Closing); sales representative. However, distribution, franchise, advertising Seller may re-mortgage the premises in its sole discretion;
(i) Seller has full power and similar agreements; concession or occupancy agreements; leases authority to enter into this Agreement and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k)consummate the transaction contemplated herein, and all other contracts or instruments actions necessary to which Seller is a partyauthorize the execution of this Agreement and conveyance of the Premises have been taken such that, are in full force upon execution by all parties hereto, this Agreement shall be the valid and binding upon obligation of Seller as qualified by Section 9 herein and such authority shall be effective on the parties thereto. No default by Seller has occurred thereunder and, to Closing Date;
(j) To the best of Seller's knowledgeknowledge without any duty of inquiry, no default hazardous substances as defined by the other contracting parties has occurred thereunder. No eventComprehensive Environmental Response, occurrence Compensation and Liability Act of 1980 ("CERCLA"), 42 USC 9601(14), pollutants or condition exists whichcontaminants as defined by CERCLA, with the lapse of time, the giving of notice42 USC 96D4(A) (2), or bothhazardous wastes as defined by the Resource Conservation and Recovery Act ("RCRA"), 42 USC 6903 (5), or other similar applicable federal or state laws and regulations including, but not limited to, asbestos, PCBs, and urea formaldehyde, have been generated, released, stored, or deposited over, beneath, or on the happening of Premises or on or in any further event or conditionstructures located on the Premises. However, would become a default Phase I Environmental Site Assessment performed by Seller thereunder. Seller has given Nxxxxxx & Associates, Inc. dated October 13, 2004 reveals no adverse environmental condition upon the Premises.
(or will give, during k) That the Inspection Period) to Purchaser true and correct copies of all such agreements the documents supplied to Buyer by Seller of this Agreement have not been changed or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)modified.
(l) Seller is has not a party togranted nor will Seller agree to grant any easement to any party, private or bound bypublic, any unexpired, undischarged which would impair the Buyer's intended use of or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according access to the terms Premises. Seller hereby discloses that it has agreed to provide an easement to Polk County along the boundary made by Sand Mine Road for the purpose of this Agreement will widening and installing Sand Mine Road and that the land dedicated to that easement shall be a default or an event part of accelerationthe Premises. Seller also discloses the presence of a reciprocal easement running along the Sand Mine Road boundary in favor of Hxxxx Hxxx Fruit Products Co., or whereby timely performance by Seller according to Inc. as shown in the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement pro forma title policy (other than those expressly assumed by Purchaser) at or prior to Closing.the "Easement")
(m) Except Seller discloses that it has conveyed a portion of the premises to Hxxxx Hill totaling 433 square feet (the "Sign Parcel") as disclosed depicted on the Disclosure Scheduledrawing attached hereto as Exhibit H. Holly Hill and its assigns are permitted to erect a sub-division sign on said Sign Parcel (the "Sub-division Sign"). The size, there are no commissions or referral fees relating dimensions and exact location of the Sign Parcel and Sign shall be in accordance with an agreement to be made within 30 days of the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, Effective Date between Buyer and Hxxxx Hxxx. The conceptual site plan of the Sign Parcel is shown on or after the Closing Date.Exhibit H.
(n) With respect Seller and Hxxxx Hill Fruit Products Co., Inc. ("Hxxxx Hxxx") both own land that abuts the current proposed path of Sand Mine Road which is planned to employees straddle the Section Line. The Section Line is the boundary shared by Seller and Hxxxx Hill. Each party has given the other a 40-foot easement over its land for purposes of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to facilitating the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each installation of the Seller's employees is terminable at will without cost to road within said 80-foot path per the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment requirements of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above)Polk County. No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in executed the operation of the Business, Mutual Access Roadway Easement to memorialize and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.implement this Easement. Said Easement is attached hereto as Exhibit J.
(o) Except as set forth Buyer and Seller shall not be responsible to construct the road pursuant to an agreement reached by Seller with Hxxxx Hxxx and a developer of the Hxxxx Hill land that requires said developer to construct the road at its expense on or before December 31, 2005 (for 350 feet from Rt. 27) and by March 31, 2006 for the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, remaining length to the best end of Seller's knowledgeland. A copy of said agreement is attached hereto as Exhibit G. In the event of a default by the Hxxxx Hxxx developer, threatenedBuyer shall be responsible for the road construction up to 350 feet from Rt. 27, against Seller or its Affiliates, or with respect to which ties into the consummation of access driveway for the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderdevelopment.
(p) There are no Buyer and Seller agree that they shall collaborate on a shared water retention plan for their respective developments. The Parties agree to fairly allocate the costs of the system as well as the land value caused by excess retention on either Parties land. The continued validity in all material claims pending orrespects of all representations, covenants and warranties set forth in this Agreement shall be conditions precedent to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any performance of the Purchased Assets, any obligations of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes Buyer and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health Seller hereunder. All representations and safety, wages warranties set forth in this Agreement shall be continuing and hours shall be true and discrimination, correct on and zoning ordinances and building codes. Copies of all notices of violation of any as of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleClosing Date.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. In order to induce Buyer to enter into this Agreement, Seller represents and warrants to Purchaser Buyer that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, liability company duly organizedformed, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller West Virginia and has all necessary requisite right, power and authority to conduct the Business as the Business is now being conducted.execute, deliver and perform this Agreement;
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, been duly authorized for execution, delivery and performance by all necessary partnership action(s)Seller, and has been duly executed and delivered by general partners of Seller so authorized. This Agreement Seller, and constitutes a the valid and legally binding obligation agreement of Seller, enforceable against Seller in accordance with its terms terms;
(except c) There is no pending or threatened litigation, condemnation or similar proceeding affecting the Project or any part thereof, nor to the extent that enforcement may be affected best knowledge and belief of Seller is any such proceeding or assessment contemplated by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.authority;
(d) No consentExcept for Tenant, authorizationthere are no parties in possession of any portion of the Land as lessees, order or approval oftenants at sufferance, licensees, or filing trespassers and no person or registration withentity has any right or option to lease, purchase, occupy, or possess all or any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller part of the transactions contemplated by this Agreement and Seller's Ancillary Documents.Project or any interest therein;
(e) Neither Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code;
(f) To the knowledge of Seller and except as disclosed in the environmental report delivered to Buyer, the Land does not contain any hazardous wastes, hazardous substances or materials, toxic materials, or the like, as defined or designated in any federal, state, or local law or environmental statute, regulation, or ordinance, including asbestos, nor does the Land contain any environmental hazard under any local, state, or federal laws or regulations applicable to the Land;
(g) To Seller's knowledge, no notice of violation has been issued with regard to any applicable regulation, ordinance, requirement, covenant, condition or restriction relating to the present use or occupancy of the Project by any person, authority or agency having jurisdiction;
(h) Seller will not, without the prior written consent of Buyer, take any action before any governmental authority having jurisdiction thereover, the object of which would be to change the present zoning of or other land-use limitations, upon the Project, or any portion thereof, or its potential use, and, to Seller's knowledge, there are no pending proceedings, the object of which would be to change the present zoning or other land-use limitations;
(i) Except for any item to be prorated at Closing in accordance with this Agreement, all bills or other charges, costs or expenses arising out of or in connection with or resulting from Seller's use, ownership, or operation of the Project up to Closing shall be paid in full by Seller;
(j) All general real estate taxes, assessments and personal property taxes that have become due with respect to the Project (except for those that will be prorated at Closing) have been paid or will be so paid by Seller prior to Closing;
(k) From the date hereof until Closing or the earlier termination of this Agreement, Seller shall (i) operate and maintain the Project in a manner generally consistent with the manner in which Seller has operated and maintained the Project prior to the date hereof, and shall perform in all material respects, its obligations under the Lease, (ii) not, without Buyer's written consent which shall not be unreasonably withheld, amend, modify or waive any material rights under the Lease, and (iii) maintain the existing or comparable insurance coverage, if any, for the Improvements which Seller is obligated to maintain under the Lease;
(l) To Seller's actual knowledge, except as disclosed in any environmental report delivered to Buyer, there is not now, nor has there ever been, on or in the Project underground storage tanks, any asbestos-containing materials or any polychlorinated biphenyls, including those used in hydraulic oils, electric transformers, or other equipment. Seller hereby assigns to Buyer, effective as of Closing, all claims, counterclaims, defenses, or actions, whether at common law, or pursuant to any other applicable federal or state or other laws which Seller may have against any third parties relating to the existence of any Hazardous Materials in, at, on, under or about the Project (including Hazardous Materials released on the Project prior to Closing and continuing in existence on the Project at Closing);
(m) Should Seller receive notice or knowledge of any information regarding any of the matters set forth in this Section 4.1 after the date hereof and prior to Closing, Seller will immediately notify Buyer of the same in writing; and
(n) All representations made in this Agreement by Seller shall survive the execution and delivery of this Agreement and Seller's Ancillary Documents Closing for a period of two (2) years. Seller shall and does hereby indemnify against and hold Buyer harmless from any loss, damage, liability and expense, together with all court costs and attorneys' fees which Buyer may incur, by Seller, nor the consummation reason of any material misrepresentation by Seller of the transactions herein contemplated, will conflict with or result in a any material breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) warranties. Seller's books, accounts indemnity and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been hold harmless obligations shall survive Closing for a party are properly reflected therein.
period of two (g2) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Assignment of Agreement of Purchase and Sale (Cole Credit Property Trust II Inc)
Seller’s Representations and Warranties. Seller hereby warrants and represents to Buyer, as of the Effective Date and warrants to Purchaser thatas of the Closing Date, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) The execution, delivery and performance by Seller of its obligations under this Agreement will not conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulations, judgment, decree or order by which the Seller is a limited partnership in commendambound, duly organized, validly existing and in good standing, under the laws or by any of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances provisions of any kind contract to which the Seller is bound, or nature other than by the Permitted Exceptionsorganic agreements establishing and regulating the Seller’s business affairs, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of consummate the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980and all consents and approvals necessary therefor have been obtained.
(db) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or the legal and equitable owner of fee simple title to the Property and has been a party are properly reflected therein.
(g) Complete the right to convey such fee simple title by Deed to Buyer on the Closing Date free and accurate copies clear of all options, rights, covenants, easements, liens and other rights in favor of third parties, other than the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently appliedPermitted Exceptions. The Disclosure Schedule contains complete and correct copies of all attorneys' responses Property is not subject to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
any: (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct outstanding agreements of sale, options, liens, or other rights of third parties to acquire any interest(s) therein, except as set forth in all material respectsthe Preliminary Report; (ii) such Permits constitute all ground leases or other leases or tenancies (other than the lease of the Permits currently necessary for entire Property to Zhone Technologies, Inc. which will be terminated on the ownership and operation of the BusinessClosing), including but not limited toto equipment or signage leases, or other agreements relating to the food and beverage licenses required to sell and serve food and liquorownership of the Property; (iii) no default has occurred in the due observance real estate, management, supply, promotional, operating, maintenance, security or performance of any requirements or condition of any Permit which has not been heretofore correctedother service contracts, except such contracts made available to Buyer for review pursuant to Section 7 hereof; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation declarations of the Business or any restaurantcovenants, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor disputeconditions and restrictions, or any material adverse change insimilar encumbrances, or loss ofaffecting the Property, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee the Preliminary Report; or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (encumbrance(s) other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees as provided in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.the
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Seller’s Representations and Warranties. The Seller represents and warrants to Purchaser that, to the best of Seller's knowledge BCLP and except CCC as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. The Seller has all necessary power and the full authority to conduct execute, deliver and carry out the Business as terms of this Agreement and to consummate the Business is now being conductedtransactions contemplated hereby.
(b) Except as set forth This Agreement has been duly and validly executed and delivered by the Seller and constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with the Disclosure Scheduleterms.
(c) The Seller is the sole beneficial holder of all of the Units, free and clear of any lien or other encumbrance.
(d) Upon transfer to CCC by the Seller holds of the Units, CCC will have good and marketable title to the Purchased AssetsUnits, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions any lien or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentencumbrance.
(ce) The Units and the 460,000 Units owned by Xxxx X. Xxxxx, Xx., constitute all of the securities of BCLP beneficially owned, directly or indirectly, by the Seller or by any of its "affiliates" or "associates," as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each an "Affiliate" or "Associate," respectively).
(f) Neither the Seller nor any of its Affiliates or Associates has full partnership power any outstanding option, warrant or other right to acquire, directly or indirectly, any securities of BCLP or any securities which are convertible or exchangeable into or exercisable for any securities of BCLP, nor is the Seller or any of its Affiliates or Associates subject to any agreement (whether written or in the nature of an informal understanding) which allows or obligates the Seller or such Affiliate or Associate to vote or acquire any such securities.
(g) The execution and authority to enter into and perform under (x) delivery by the Seller of this Agreement and (y) all documents such other agreements and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of the Seller so authorized. This Agreement constitutes a valid pursuant hereto and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance consummation of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up hereby and thereby will not violate any provisions of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration withlaw, any governmental authority rule or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with regulation or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree order of any court or any governmental authority other agency or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions government to which Seller or any of its assets are subject and will not violate, conflict with, or result in any breach of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under any agreement or other instrument to which the Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies or by which the Seller or any of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsits properties or assets may be bound or affected.
(h) Complete and accurate copies Except for any required approval of the unaudited balance sheetNational Basketball Association, statement which approval will be obtained prior to Closing, no approval, authorization, consent or other order or action of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance or filing or registration with GAAP, consistently applied.
any (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; court, administrative agency, or other governmental authority or (ii) such Permits constitute all of the Permits currently necessary stock exchange or other self regulatory authority is required for the ownership execution and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default delivery by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right instruments to be rehired executed and delivered by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare pursuant hereto or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction transactions contemplated hereby, hereby or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderthereby.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Unit Purchase Agreement (Boston Celtics Limited Partnership)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to that as of the best date of Seller's knowledge and except as set forth in the Disclosure Schedulethis Agreement:
(a) Seller and each of the other Simon Interest Holders is a limited liability company, limited partnership in commendamor corporation, as applicable, duly organized, validly existing and in good standing, standing under the laws of the State of Louisianastate in which said entity was formed. Seller has the full power and lawful authority under its respective organizational documents to execute, deliver and perform this Agreement and all documents which are contemplated to be delivered at Closing pursuant to this Agreement, and each of the Simon Interest Holders has the full power and lawful authority to execute, deliver and perform all instruments and agreements contemplated by this Agreement to be delivered by said entity. All actions necessary to confer such power and authority to conduct upon the Business as the Business is now being conducted.
persons executing this Agreement (b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule documents which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) contemplated by this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents")the respective Simon Interest Holders) have been taken. This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller, and each Simon Interest Holder's Articles of Partnership In Commendam dated as of May 1execution, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution delivery and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach performance of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right contemplated to be rehired by the Seller prior executed and delivered at closing pursuant to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is will not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into result in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect todefault under, or require any notice or consent under, any decreeof the organizational documents of said entity.
(b) All of the Simon Ownership Interests are owned by Seller or, order or arbitration award or lawas the case may be, statutethe applicable Simon Interest Holder, or regulation offree and clear of any and all security agreements, or agreement withfinancing statements, or Permit from, any Federalliens (including federal, state or local governmental authority (tax liens and any liens arising pursuant to state bulk sales or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subjectbulk transfer laws), includingencumbrances, without limitationsecurity interests or other claims of any kind (collectively, laws"LIENS"). The Simon Ownership Interests are not subject to any option, statutes right of first refusal, purchase agreement, put, call or other right to purchase (collectively, "PRE-EMPTIVE RIGHTS"), other than (i) this Agreement (ii) the Pre-Emptive Rights of third parties expressly set forth in the Venture Companies' Organizational Documents. The applicable Simon Ownership Interests shall be transferred to Purchaser upon the consummation of each Closing free and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies clear of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleLiens and Pre-Emptive Rights.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to to, and covenants with, Purchaser thatthat the following matters are and shall be true as of the date hereof and, to the best of Seller's knowledge and except as set forth otherwise provided in this Agreement, as of the Disclosure ScheduleClosing Date:
(a) 9.1.1 Seller is a limited partnership in commendam, duly organized, validly corporation existing and in good standing, standing under the laws of the State of Louisiana. Seller Delaware, is qualified to do business and in good standing in the state in which the Project is located, has all necessary requisite power and authority to conduct authority, without the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances consent of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid forparty, to own and operate the extent that normal business practice permitsProject, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) to carry out the transactions contemplated hereby, and has all documents requisite power and instruments authority, without the consent of any party, to be executed enter into the Lease and to carry out the transactions contemplated thereby as Lessee.
9.1.2 The execution and delivery of this Agreement by the signatories hereto on behalf of Seller and the performance of this Agreement and the Lease by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, have been duly authorized by all necessary partnership action(s), Seller; and duly executed this Agreement and delivered by general partners of Seller so authorized. This Agreement constitutes a valid the Lease are binding on and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies)their respective terms. Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance No consent of any partner, member, shareholder, beneficiary, creditor or investor of Seller or any judicial or administrative body, governmental body authority or agency prohibiting Seller's other party to such execution, delivery and performance is required. Neither the execution of this Agreement and the Lease, nor the consummation of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(fhereby or thereby will (i) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of, default under or acceleration of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions agreement to which Seller is or has been a party are properly reflected thereinor by which Seller or the Project is bound or (ii) violate any restriction, court order or agreement to which Seller or the Project is subject.
(g) Complete and accurate copies of 9.1.3 To the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) best of Seller's knowledge, all as of the descriptive information concerning the Project set forth in Section 1 and for the years ended December 31, 1993, 1994, 1995, Exhibits 1.1 and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list 1.3 is complete true and correct in all material respects; (ii) such Permits constitute .
9.1.4 Seller is the current owner of fee simple title to the Land and the Improvements and has good and indefeasible title to the Land and the Improvements free and clear of all mortgages and security interests as of the Permits currently necessary for the ownership Closing Date, leases and operation of the Businesstenancies, including but not limited tolicenses, the food claims, options, options to purchase, liens, covenants, conditions, restrictions, rights-of-way, servitudes, easements, judgments and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source other matters affecting title to the effect that there is lacking any Permit needed in connection with Project, except the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Permitted Exceptions. Neither Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and nor any of its customers, suppliers affiliates owns any land adjacent to the Land or key employeesseparated from the Land only by a dedicated public way or public or private easement or right-of-way.
(k) The Disclosure Schedule correctly 9.1.5 All items delivered or exhibited to Purchaser by Seller pursuant to this Agreement, including without limitation Section 5 hereof and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k)Exhibit 5.1 hereto, and all other contracts or instruments to which Seller is a party, are in full force exhibits and binding upon the parties thereto. No default by Seller has occurred thereunder andschedules hereto are, to the best of Seller's knowledge, true, correct and complete in all material respects and fairly present the information set forth in a manner that is not materially misleading. There are no leases, occupancy agreements and other agreements, understandings and commitments with tenants or other occupants relating to the Project, except the Lease and as listed in the documents delivered pursuant to Exhibit 5.1.
9.1.6 Seller is not in default by under any of the other contracting parties has occurred thereunder. No eventdocuments, occurrence recorded or condition exists which, with unrecorded referred to in the lapse of time, the giving of noticeTitle Commitment, or both, or the happening of under any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser General Contracts or Governmental Approvals (as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required all are defined in this Section 4.3(kExhibit 5.1).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under 9.1.7 To the terms best of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleSeller's knowledge, there are no commissions material defects in the Improvements, the structural elements thereof, the mechanical systems (including without limitation all heating, ventilating, air- conditioning, plumbing, electrical, elevator, security, utility and sprinkler systems) therein, or referral the roofs, and all of the foregoing are in good operating condition. The mechanical systems in the Improvements are independent systems and do not depend on any other property or source of power or materials for operation except customary utility services.
9.1.8 To the best of Seller's knowledge, all water, sewer, gas, electric, telephone, drainage and other utility equipment, facilities and services required by law or necessary for the operation of the Project (including the Improvements) as it is now being operated and as required for operation of the Project as it is presently being operated are installed and connected pursuant to valid permits, are adequate to service the Project and are in good operating condition, and all fees relating and other charges therefor have been paid in full, including but not limited to tap-in and connection fees for public water and sanitary sewerage facilities. To the best of Sellers' knowledge no fact or condition exists which would result in the termination, reduction or impairment of the furnishing of service to the Business currently outstandingProject of water, nor will there be any sewer, gas, electric, telephone, drainage and other such commissions or referral fees outstanding, on or after the Closing Dateutility services.
(n) With respect to employees 9.1.9 To the best of Seller:
's knowledge, the Project, the facilities servicing the Project and the use and operation thereof are not in violation of applicable municipal and governmental laws, ordinances, regulations, licenses, permits and authorizations and all covenants, conditions and restrictions applicable to the Project (collectively "Applicable Laws"), including without limitation all zoning, subdivision, wetlands, environmental, air quality, flood hazard, fire safety, planning, handicapped access and facilities and building codes, laws and regulations, and there are presently in effect all licenses, permits and other authorizations necessary for the use, occupancy and operation of the Project as it is presently being operated, except as described in the Environmental Reports. To the best of Seller's knowledge, (i) there are no unrecorded agreements with any municipality or governmental authority regarding zoning, off-site improvements or the nature of improvements on the Land or the use thereof; (ii) access to and from the Improvements (and every part thereof) to and from public roads is sufficient to comply with all presently existing Applicable Laws affecting the Project or Improvements and for the present use of the Project and Improvements; and (iii) the streets, roads and avenues adjoining the Project have been dedicated to and accepted for maintenance and public use by the public authority having jurisdiction thereover. To the best of Seller's knowledge, there are no pending or threatened unfair labor practice charges requests, applications or employee grievance charges;proceedings to alter or restrict the zoning or other use restrictions applicable to the Project or any portion thereof, including without limitation proceedings involving condemnations, eminent domain building code, environmental or zoning. Seller has not received any notice from any municipal, state, federal or other governmental authority of zoning, building, fire, water, use, health, environmental or other statute, ordinance, code or regulatory violations issued in respect of the Project which remain uncorrected. There are no off-site facilities necessary to ensure compliance with Applicable Laws.
(ii) there 9.1.10 Seller has not received any written notice from any insurance carrier of, nor is Seller aware of, defects or inadequacies in the Project which if not corrected would result in termination of insurance coverage or increase in the cost thereof.
9.1.11 To the best of Seller's knowledge, no request portion of the Project is located in a designated 100-year flood zone or in a designated earthquake zone.
9.1.12 To the best of Seller's knowledge, no wetlands now exist on the Land or existed on the Land at anytime. To the best of Seller's knowledge no portion of the Land has appeared on any Wetlands Inventory.
9.1.13 No attachments, execution proceedings, assignments for union representationthe benefit of creditors, labor strikeinsolvency, disputebankruptcy, slowdown reorganization or stoppage actually other proceedings are pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out , nor are any of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired such proceedings contemplated by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to 9.1.14 To the best of Seller's knowledge, threatened, against Seller or its Affiliates, or all storm water flowing from the Land drains directly into a public way in compliance with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderall Applicable Laws.
(p) There are no material claims pending or, to 9.1.15 To the best of Seller's knowledge, anticipated the soil condition of the Land is such that it will support all of the Improvements for the foreseeable life thereof without the need for unusual or threatened new sub-surface excavations, fill, footings, caissons or other installations.
9.1.16 There are no unpaid or outstanding real estate or other taxes or assessments on or against Seller the Project, or any part thereof, except only general real estate taxes not yet due or payable. Copies of the 1999 general real estate tax bills with respect to the quality Project and all subsequent assessment notices have been delivered to Purchaser. To the best of or absence of or defects in Seller's products knowledge, said bills cover the whole of the Project and do not cover or services.
(q) Seller apply to any other property. To the best of Seller's knowledge, other than as appears as a matter of public record, there are no standby fees or special assessments against the Project and there is not a party to, no pending or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or contemplated action pursuant to which any of standby fee or special assessment may be levied against the Purchased Assets, any Project.
9.1.17 To the best of Seller's personnelknowledge, or except as specifically described in the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws Reports (as herein defineddefined in Exhibit 5.2) and any Environmental Permits delivered to or obtained by Purchaser, there are no Hazardous Materials (as herein defined). A copy of any noticedefined herein) generated, citationreleased, inquiry stored, buried or complaint which Seller has received deposited over, beneath, in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.upon the
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to Buyer that Seller has no actual knowledge that would negate any of the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollowing statements:
(a) a. Seller is a limited partnership in commendamthe sole owner of and has, duly organized, validly existing and in good standing, under the laws or will have as of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure ScheduleClosing Date, Seller holds good and marketable title to the Purchased Portal Assets, free and clear of all mortgagesEncumbrances.
b. Except for those rights granted and governed by the Customer Contracts and the other transfers set forth on the attached Exhibit I (the "Other Transfers"), optionsneither Seller nor any other person or entity has granted to any person or entity any right or privilege in, liensto or relating to the Portal Software, chargesincluding without limitation any right to sell, easementsconvey, agreementstransfer, claimslicense, rightssub-license, restrictions create derivative works, alter, copy, reproduce, use, market, or other encumbrances distribute the Portal Software.
c. Seller is the sole owner and registrant of any kind or nature other than the Permitted Exceptionsall local, state, federal and foreign copyrights, trade names, trade marks, service marks, patents, and all items of Equipment, Inventory and other personal intellectual property have been fully paid for, registrations related to the extent Portal Software and, with the exception of the rights granted in the Customer Contracts and the Other Transfers, Seller has no reason to believe that normal business practice permitsany other person or entity may have any right which could invalidate, be superior to or otherwise jeopardize Buyer's exclusive ownership of and rights to the unfettered use, alteration and sale of the Portal Software.
d. Except for the Customer Contracts and the Other Transfers, and except those items identified on the Disclosure Schedule which are subject to installment payments as otherwise stated in this Agreement, neither Seller nor any other person or leases and entity has entered into any contract, license, sub-license, agreement, arrangement or understanding with respect to which there are no installments due which are delinquentthe sale, license, conveyance, transfer or other disposition of all or any portion of the Portal Assets.
e. The Portal Assets comprise all of the material intellectual property rights which have been used by Seller or its predecessor in the operation of the business involving the Portal Software during the twelve (c12) months immediately prior to the Closing Date.
f. No person or entity has infringed, misappropriated, violated or conflicted with any of the rights in and to the Portal Assets.
g. Except as otherwise stated in this Agreement, no present or former shareholder, officer, director, agent, employee, independent contractor or other person or entity related to Seller or its predecessor has, or has claimed, any right whatsoever in or to the Portal Assets.
h. No loss or expiration of any right to any of the Portal Assets is threatened, pending, or reasonably anticipated which, individually or in the aggregate with other losses or expirations, could cause a material and adverse effect on Buyer's use and ownership of the Portal Assets.
i. No party to any of the Assumed Contracts has indicated that such party would, or would otherwise be expected to, cancel or breach any of the Assumed Contracts or otherwise take action which would have a material and adverse impact on Buyer's rights in and to the Portal Assets or to use and market the Portal Software.
j. No person or entity has disclosed or otherwise jeopardized the secrecy of any trade secret which could jeopardize Buyer's rights to, or ability to conduct business with, the Portal Assets, whether or not such trade secret is part of the Portal Assets.
k. Neither Seller, its predecessor nor any other person or entity has infringed, misappropriated, or otherwise conflicted with any rights of any third parties, including without limitation the infringement, misappropriation or conflict of any third party's patent, trademark, trade name, domain name, service xxxx, copyright or other intellectual property right.
l. Neither Buyer's purchase of the Portal Assets pursuant to this Agreement, nor Buyer's future use of the Portal Assets in a manner consistent with the prior use of Seller and its predecessor, will result in any infringement, misappropriation, or conflict with any rights of any other person or entity.
m. With respect to any agreements granting licensee rights to Seller which will be assumed by Buyer with its purchase of the Portal Assets, Seller has full partnership a valid and enforceable right to use the assets licensed pursuant to such agreements and to assign such right to Buyer pursuant to this Agreement.
n. Subject to the approval of the Bankruptcy Court, Seller has all requisite power and authority to enter into and perform under (x) the terms of this Agreement.
o. This Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a supporting documentation constitute valid and legally binding obligation obligations of Seller, enforceable against Seller in accordance with its terms (their terms, except to the extent that as enforcement may be affected limited by laws applicable law or the order of the Bankruptcy Court.
p. There are no actions, suits, disputes, litigation, proceedings or governmental investigations whatsoever pending or, to the knowledge of Seller, threatened against or directly or indirectly relating to bankruptcy, reorganization, insolvency and creditors' rights and by any of the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation Portal Assets or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by Notwithstanding anything in this Agreement is being made in connection to the contrary, Seller will not be imputed with the winding-up knowledge of Seller as contemplated under Section 13.02(f) any employee, officer, director, contractor or agent of Seller's Articles of Partnership In Commendam dated as of May 1InfoImage, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required Inc. for Seller's execution and delivery purposes of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsSection 12.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Serviceware Technologies Inc/ Pa)
Seller’s Representations and Warranties. Seller warrants and represents and warrants to Purchaser thatas follows, to which warranties and representations shall be deemed made on the Effective Date and shall be reaffirmed at Closing:
A. To the best knowledge of Seller's knowledge , and except as set forth disclosed in the Disclosure Schedule:
(a) Seller is a limited partnership in commendamitems delivered pursuant to Exhibit “C”, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased AssetsProperty is, and at Closing Settlement will be, marketable and good of record and in fact, free and clear of all mortgages, options, liens, chargesencumbrances or leases, easements, agreements, claims, rights, restrictions except the Leases and those matters to be removed at or other encumbrances of any kind or nature other than prior to Closing and the Permitted Exceptions. To the best knowledge of Seller, and all except as disclosed in the items of Equipmentdelivered pursuant to Exhibit “C”, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquenttitle conditions adversely affecting title insurability.
(c) B. Seller is a validly existing Florida limited liability company in good standing and has full partnership power and the corporate authority to enter into and perform its obligations under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to Contract. The person executing this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners Contract on behalf of Seller so authorized. This Agreement constitutes a valid and legally binding obligation has been authorized to do so.
C. To the best of Seller’s knowledge, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement Contract do not, and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplatedtransaction contemplated hereby will not in any material respect, will conflict with require any approval, consent, authorization or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsorder of, or of filing with, any statute private party or administrative regulationany governmental agency or body or violate any law, rule or of regulation or any order, writ, injunctionarbitration award, judgment or decree of any court or any governmental authority or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected thereinor by which it or any of the Property is bound.
(g) Complete D. The Property is not subject to any option contract or other sales contract, or to any leases or other occupancy agreements other than the Leases.
E. Except as may otherwise be disclosed in the items delivered pursuant to Exhibit “C”, Seller has no knowledge of, and accurate copies has received no written notice from, any governmental authority requiring any work, repairs, construction, alterations or installations on or in connection with the Property, or asserting any violation of any federal, state, county or municipal laws, ordinances, codes, orders, regulations or requirements affecting any portion of the audited balance sheetsProperty, statements of income and retained earningsincluding, statements of cash flowswithout limitation, and notes any applicable environmental laws or regulations. Except as may otherwise be disclosed in the items delivered pursuant to financial statements (together with any supplementary information thereto) Exhibit “C”, there is no written action, suit or proceeding pending or, to the knowledge of Seller, threatened against or affecting Seller or the Property or any portion thereof or relating to or arising out of the ownership of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality.
F. The Seller has not received from any governmental authority any written notice of, and the Seller presently has no knowledge of, pending or contemplated condemnation proceedings affecting the Property.
G. On the date Purchaser notifies Seller that it has waived its rights to terminate this Contract pursuant to Section 3B hereof, Seller shall give notice of termination to be effective at Closing with regard to any management or leasing contract or fee arrangement between Seller and any other party for or in connection with the Real Property and all payments due thereunder will be paid in full by Seller prior to Closing and Seller shall hold Purchaser harmless from any claims thereunder, unless Purchaser, at its sole option, assumes any such agreement in writing. Seller further warrants and represents that all such contracts and agreements shall be terminated effective as of and for Closing, unless otherwise assumed by Purchaser as noted above.
H. Seller has not received any written notice from any insurance company or any board of fire underwriters (or other body exercising similar functions) claiming any defects or deficiencies with respect to, or requesting the years ended December 31performance of any repairs, 1993alterations or other work to, 1994, 1995, and 1996, respectively, the Property.
I. Except as audited by Seller's certified public accountants are contained may otherwise be disclosed in the Disclosure Scheduleitems delivered pursuant to Exhibit “C”, to Seller’s Knowledge, Seller has not received written notice of the existence of any Hazardous Materials (as defined below) located on the Property which are in violation of any applicable Environmental Laws (as defined below). All such financial statements are referred Seller represents and warrants that the Seller’s Documents contain or will contain all of the environmental reports and assessments with respect to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Real Property that Seller has in Seller’s possession as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently appliedEffective Date. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements.Hazardous Materials" The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
shall mean (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respectsany toxic substance or hazardous waste, substance or related material, or any pollutant or contaminant; (ii) such Permits constitute all radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (iii) any substance, gas material or chemical which is or may be defined as or included in the Permits currently necessary for definition of "hazardous substances", "toxic substances", "hazardous materials", "hazardous wastes" or words of similar import under any federal, state or local statute, law, code, or ordinance or under the ownership and operation of the Businessregulations adopted or guidelines promulgated pursuant thereto, including including, but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; Comprehensive Environmental Response, Compensation and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents documents, agreements and instruments to be executed by Seller pursuant to or in connection with this Agreement (collectivelyAgreement. The execution and delivery by Seller of this Agreement, "Seller's Ancillary Documents")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 action. This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and been duly executed and delivered by general partners of Seller so authorized. This Agreement and constitutes a its legal, valid and legally binding obligation of Selleragreement, enforceable against Seller it in accordance with its terms (except terms, subject to the extent that enforcement may be affected by laws relating to applicable bankruptcy, insolvency, reorganization, insolvency moratorium and creditors' similar laws affecting creditor’s rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980remedies generally.
(db) No Except for technology transfer regulations (see paragraph c below), no consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person or entity not furnished at or prior to Closing is required for Seller's the execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither Agreement. Except as noted above, neither the execution and delivery by Seller of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedcontemplated hereby and thereby, will conflict with or result in a breach of any of the terms, conditions or provisions of the constituent organizational and governing documents of Seller's Articles of Partnership In Commendam or other organizational documents, or of any agreement or instrument to which Seller is a party or any of its properties is subject or bound or 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, in each case to which Seller is subject or by which Seller is bound, which conflict or breach could have a material adverse effect on the Seller’s ability to complete the transactions contemplated by this Agreement.
(fc) Seller's booksSeller has the power and authority to transfer title to the ICC System and ICC-V System hardware and operating documentation as set forth in section 1 of the present purchase agreement. Seller shall have full power and authority and will transfer title to the ICC System and ICC-V System technical design data upon (i) receipt of the approvals of the U.S. Department of State and/ or Department of Commerce, accounts if required, or (ii) availability of personnel and records areprocesses within Astrium NA which allow such transfer without approval.
(d) Seller has the power to sell free and clear of any Claims all Purchased Assets. Seller has or will have good title to Purchased Assets at the time of the closing related to such assets. All ICC System Assets and ICC-V System Assets are in good operating condition and repair, ordinary wear and have been, maintained in Seller's usual, regular and ordinary mannertear excepted, in accordance with prudent industry standards. The ICC System Assets are physically located in or about Seller’s place of business. The ICC-V System Assets will be physically located in or about Seller’s place of business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies at the time of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Second Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(viie) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, warrants that there is no litigation or proceeding, in law or in equity, pending against Seller with respect to the Purchased Assets and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, authority pending against or, to the best of the Seller's ’s knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or servicesPurchased Assets.
(qf) Seller has not dealt with any person or entity who is or may be entitled to a broker’s commission, finders fee, investment bankers fee or similar payment from Purchaser for arranging the transaction contemplated hereby or introducing the parties to each other.
(g) Seller owns all intellectual property that are incorporated in, used by or related to the ICC System Assets or the ICC-V System Assets. Seller is not and will not be, as a party toresult of the execution and delivery of this Agreement or the performance of its obligations under this Agreement, in breach of any license, sublicense or bound by, any decree, order, judgment other agreement relating to intellectual property or arbitration award (the rights of third parties with regard to intellectual property. Purchaser’s use or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect lease to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any third parties of the Purchased Assets, any of Seller's personnel, or Assets will not infringe the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation intellectual property rights of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedulethird party.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) that Seller is a limited partnership in commendam, duly organized, organized and validly existing and in good standing, under the laws of the State state of Louisiana. Idaho, that Seller has all power, authority and legal right to execute, deliver and perform the terms of this Contract, and that this Contract shall constitute valid and legally binding obligations of Seller enforceable in accordance with its terms. Seller possesses the ability to convey marketable title to the Subject Property. Seller can and will deliver at Closing the Deed and all other necessary power resolutions, agreements or other documents necessary to evidence and authority to conduct the Business as the Business is now being conducted.confirm these representations and warranties at Closing.
(b) Except as set forth in the Disclosure Schedule, Seller holds good further represents and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute warrants all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Sellerfollowing:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirementknowledge of any “Hazardous Materials” (as hereinafter defined), pensionhaving ever been used, profit sharingproduced, employee welfare released, stored, transported, disposed of, generated, deposited or employee benefit plans for otherwise existing in, over, under or upon the Subject Property by any of its employeesperson or entity whatsoever. The term “Hazardous Materials” shall collectively refer to underground storage tanks, petroleum and petroleum products, asbestos, PCBs, urea-formaldehyde and any hazardous or toxic substances, pollutants, contaminants, wastes or materials as defined under any “Environmental Laws.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, ” The term “Environmental Laws” shall collectively refer to the best Comprehensive Environmental Response, Compensation and Liability Act of Seller's knowledge1980, threatenedThe Federal Toxic Substances Control Act, against Seller or its Affiliatesthe Clean Water Act, the Resource Conservation and Recovery Act as amended, the Federal Water Pollution Control Act, the Hazardous Materials Transportation Act, the Occupational Safety and Health Act, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federalother similar federal, state or local governmental authority (law, rule or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes regulation respecting Hazardous Materials together with all rules and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health promulgated thereunder and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleamendments thereto.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Contract of Sale
Seller’s Representations and Warranties. Seller represents and warrants to to, and covenants with, Purchaser thatthat the following matters are and shall be true as of the date hereof and, to the best of Seller's knowledge and except as set forth otherwise provided in this Agreement, as of the Disclosure ScheduleClosing Date:
(a) 9.1.1 Seller is a limited partnership in commendam, duly organized, validly corporation existing and in good standing, standing under the laws of the State of Louisiana. Seller Delaware, is qualified to do business and in good standing in the state in which the Project is located, has all necessary requisite power and authority to conduct authority, without the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances consent of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid forparty, to own and operate the extent that normal business practice permitsProject, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) to carry out the transactions contemplated hereby, and has all documents requisite power and instruments authority, without the consent of any party, to be executed enter into the Lease and to carry out the transactions contemplated thereby as Lessee.
9.1.2 The execution and delivery of this Agreement by the signatories hereto on behalf of Seller and the performance of this Agreement and the Lease by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, have been duly authorized by all necessary partnership action(s), Seller; and duly executed this Agreement and delivered by general partners of Seller so authorized. This Agreement constitutes a valid the Lease are binding on and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies)their respective terms. Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance No consent of any partner, member, shareholder, beneficiary, creditor or investor of Seller or any judicial or administrative body, governmental body authority or agency prohibiting Seller's other party to such execution, delivery and performance is required. Neither the execution of this Agreement and the Lease, nor the consummation of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(fhereby or thereby will (i) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of, default under or acceleration of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions agreement to which Seller is or has been a party are properly reflected thereinor by which Seller or the Project is bound or (ii) violate any restriction, court order or agreement to which Seller or the Project is subject.
(g) Complete and accurate copies of 9.1.3 To the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) best of Seller's knowledge, all as of the descriptive information concerning the Project set forth in Section 1 and for the years ended December 31, 1993, 1994, 1995, Exhibits 1.1 and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list 1.3 is complete true and correct in all material respects; (ii) such Permits constitute .
9.1.4 Seller is the current owner of fee simple title to the Land and the Improvements and has good and indefeasible title to the Land and the Improvements free and clear of all mortgages and security interests as of the Permits currently necessary for the ownership Closing Date, leases and operation of the Businesstenancies, including but not limited tolicenses, the food claims, options, options to purchase, liens, covenants, conditions, restrictions, rights-of-way, servitudes, easements, judgments and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source other matters affecting title to the effect that there is lacking any Permit needed in connection with Project, except the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Permitted Exceptions. Neither Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and nor any of its customers, suppliers affiliates owns any land adjacent to the Land or key employeesseparated from the Land only by a dedicated public way or public or private easement or right-of-way.
(k) The Disclosure Schedule correctly 9.1.5 All items delivered or exhibited to Purchaser by Seller pursuant to this Agreement, including without limitation Section 5 hereof and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k)Exhibit 5.1 hereto, and all other contracts or instruments to which Seller is a party, are in full force exhibits and binding upon the parties thereto. No default by Seller has occurred thereunder andschedules hereto are, to the best of Seller's knowledge, true, correct and complete in all material respects and fairly present the information set forth in a manner that is not materially misleading. There are no leases, occupancy agreements and other agreements, understandings and commitments with tenants or other occupants relating to the Project, except the Lease and as listed in the documents delivered pursuant to Exhibit 5.1.
9.1.6 Seller is not in default by under any of the other contracting parties has occurred thereunder. No eventdocuments, occurrence recorded or condition exists which, with unrecorded referred to in the lapse of time, the giving of noticeTitle Commitment, or both, or the happening of under any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser General Contracts or Governmental Approvals (as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required all are defined in this Section 4.3(kExhibit 5.1).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under 9.1.7 To the terms best of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleSeller's knowledge, there are no commissions material defects in the Improvements, the structural elements thereof, the mechanical systems (including without limitation all heating, ventilating, air- conditioning, plumbing, electrical, elevator, security, utility and sprinkler systems) therein, or referral the roofs, and all of the foregoing are in good operating condition. The mechanical systems in the Improvements are independent systems and do not depend on any other property or source of power or materials for operation except customary utility services.
9.1.8 To the best of Seller's knowledge, all water, sewer, gas, electric, telephone, drainage and other utility equipment, facilities and services required by law or necessary for the operation of the Project (including the Improvements) as it is now being operated and as required for operation of the Project as it is presently being operated are installed and connected pursuant to valid permits, are adequate to service the Project and are in good operating condition, and all fees relating and other charges therefor have been paid in full, including but not limited to tap-in and connection fees for public water and sanitary sewerage facilities. To the best of Sellers' knowledge no fact or condition exists which would result in the termination, reduction or impairment of the furnishing of service to the Business currently outstandingProject of water, nor will there be any sewer, gas, electric, telephone, drainage and other such commissions or referral fees outstanding, on or after the Closing Dateutility services.
(n) With respect to employees 9.1.9 To the best of Seller:
's knowledge, the Project, the facilities servicing the Project and the use and operation thereof are not in violation of applicable municipal and governmental laws, ordinances, regulations, licenses, permits and authorizations and all covenants, conditions and restrictions applicable to the Project (collectively "Applicable Laws"), including without limitation all zoning, subdivision, wetlands, environmental, air quality, flood hazard, fire safety, planning, handicapped access and facilities and building codes, laws and regulations, and there are presently in effect all licenses, permits and other authorizations necessary for the use, occupancy and operation of the Project as it is presently being operated, except as described in the Environmental Reports. To the best of Seller's knowledge, (i) there are no unrecorded agreements with any municipality or governmental authority regarding zoning, off-site improvements or the nature of improvements on the Land or the use thereof; (ii) access to and from the Improvements (and every part thereof) to and from public roads is sufficient to comply with all presently existing Applicable Laws affecting the Project or Improvements and for the present use of the Project and Improvements; and (iii) the streets, roads and avenues adjoining the Project have been dedicated to and accepted for maintenance and public use by the public authority having jurisdiction thereover. To the best of Seller's knowledge, there are no pending or threatened unfair labor practice charges requests, applications or employee grievance charges;proceedings to alter or restrict the zoning or other use restrictions applicable to the Project or any portion thereof, including without limitation proceedings involving condemnations, eminent domain building code, environmental or zoning. Seller has not received any notice from any municipal, state, federal or other governmental authority of zoning, building, fire, water, use, health, environmental or other statute, ordinance, code or regulatory violations issued in respect of the Project which remain uncorrected. There are no off-site facilities necessary to ensure compliance with Applicable Laws.
(ii) there 9.1.10 Seller has not received any written notice from any insurance carrier of, nor is Seller aware of, defects or inadequacies in the Project which if not corrected would result in termination of insurance coverage or increase in the cost thereof.
9.1.11 To the best of Seller's knowledge, no request portion of the Project is located in a designated 100-year flood zone or in a designated earthquake zone.
9.1.12 To the best of Seller's knowledge, no wetlands now exist on the Land or existed on the Land at anytime. To the best of Seller's knowledge no portion of the Land has appeared on any Wetlands Inventory.
9.1.13 No attachments, execution proceedings, assignments for union representationthe benefit of creditors, labor strikeinsolvency, disputebankruptcy, slowdown reorganization or stoppage actually other proceedings are pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out , nor are any of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired such proceedings contemplated by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to 9.1.14 To the best of Seller's knowledge, threatened, against Seller or its Affiliates, or all storm water flowing from the Land drains directly into a public way in compliance with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderall Applicable Laws.
(p) There are no material claims pending or, to 9.1.15 To the best of Seller's knowledge, anticipated the soil condition of the Land is such that it will support all of the Improvements for the foreseeable life thereof without the need for unusual or threatened new sub-surface excavations, fill, footings, caissons or other installations.
9.1.16 There are no unpaid or outstanding real estate or other taxes or assessments on or against Seller the Project, or any part thereof, except only general real estate taxes not yet due or payable. Copies of the 1999 general real estate tax bills with respect to the quality Project and all subsequent assessment notices have been delivered to Purchaser. To the best of or absence of or defects in Seller's products knowledge, said bills cover the whole of the Project and do not cover or servicesapply to any other property. To the best of Seller's knowledge, other than as appears as a matter of public record, there are no standby fees or special assessments against the Project and there is no pending or contemplated action pursuant to which any standby fee or special assessment may be levied against the Project.
9.1.17 To the best of Seller's knowledge, except as specifically described in the Environmental Reports (qas defined in Exhibit 5.2) delivered to or obtained by Purchaser, there are no Hazardous Materials (defined herein) generated, released, stored, buried or deposited over, beneath, in or upon the Land or the Improvements other than Hazardous Materials used by Seller is not a party in the ordinary course of its business and in compliance with all Applicable Laws (as defined below). For purposes of this Agreement, "Hazardous Materials" shall mean and include any flammable explosives, petroleum (including crude oil) or any fraction thereof, radioactive materials, asbestos or asbestos- containing materials, hazardous wastes, toxic substances or related materials, including without limitation any substances defined as or included in the definition of toxic or hazardous substances, wastes, or materials under any federal or applicable state or local laws, ordinances or regulations dealing with or otherwise pertaining to toxic or hazardous substances, wastes or materials. Such laws, ordinances and regulations are hereinafter collectively referred to as the "Hazardous Materials Laws." From the date hereof to and including the Closing Date, Seller shall, and Seller shall cause all employees, agents, contractors and subcontractors of Seller and any other persons from time to time present on or occupying the Land or the Improvements to, keep and maintain the Land and the Improvements, including the soil and ground water thereof, in compliance with, and not cause or bound byknowingly permit the Land or the Improvements, any decreeincluding the soil and ground water thereof, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not be in violation of, or delinquent any applicable Hazardous Materials Laws, except as may be described in respect to, the Environmental Reports. Seller shall immediately advise Purchaser in writing of: (i) any decree, order or arbitration award or law, statutenotices received by Seller, or regulation ofits officers, partners, members, shareholders, beneficiaries, employees or agents (whether such notices are from the Environmental Protection Agency, or agreement with, or Permit from, any Federalother federal, state or local governmental authority agency or regional office thereof) of the violation or potential violation occurring on or about the Land or the Improvements of any applicable Hazardous Materials Laws; (ii) any and all enforcement, clean-up, removal or other governmental or regulatory actions instituted, completed or threatened in respect of the Land or the Improvements pursuant to any Hazardous Materials Laws; (iii) all claims made or threatened by any third party against Seller or the Land or the Improvements relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i), (ii) and (iii) above are hereinafter referred to as "Hazardous Materials Claims"); and (iv) Seller's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Land and the Improvements that could cause the Land or the Improvements or any part thereof to be subject to any Hazardous Materials Claims, except as may be described in the Environmental Reports. Seller shall be solely responsible for, and shall indemnify and hold harmless Purchaser, its partners, directors, officers, members, shareholders, beneficiaries, employees, agents, successors and assigns from and against, any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to (i) the breach by Seller of any warranty, representation or covenant contained in this Section 9.1.17, and (ii) the release, disposal, generation, storage or existence of any Hazardous Materials at the Project (or to which at any other location if originating from the Project) in violation of the Purchased AssetsHazardous Materials Laws, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, including without limitation: (x) claims of third parties (including governmental agencies) for damages, lawspenalties, statutes losses, costs, fees, expenses, damages, injunctive or other relief; (y) response costs, clean-up costs, costs and regulations relating to equal employment opportunitiesexpenses of removal and restoration, fair employment practices, unfair labor practices, terms including fees of employment, occupational health attorneys and safety, wages and hours and discriminationexperts, and zoning ordinances costs of determining the existence of Hazardous Materials and building codesreporting same to any governmental agency; and (z) any and all expenses or obligations, including reasonable attorneys' fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as costs, including without limitation reasonable attorneys' fees, witness fees, deposition costs, copying and telephone charges and other expenses. Copies of all notices of violation of any of the foregoing Any loss, damage, cost, expense or liability incurred by Purchaser for which Seller is responsible or for which Seller has received within agreed to indemnify Purchaser shall be paid to Purchaser on demand. The obligations of Seller under this Section 9.1.17 shall survive the past three years are attached to the Disclosure Schedule.
(s) Sellertermination of this Agreement and, if applicable, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsClosing.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants to the Purchaser that, to as of the best Effective Date and again as of Seller's knowledge and except the Closing Date as set forth in the Disclosure Schedulefollows:
(ai) that it has good and marketable title to the Interest, free and clear of any lien, pledge, security interest, claim, option, agreement, encumbrance or other restriction of whatever nature or kind, except as may be imposed by the Loan Documents;
(ii) that it has not previously transferred any part of the Interest sold under the terms of this Agreement;
(iii) that it 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 the Seller and 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) the Seller is a limited partnership in commendam, duly organized, validly existing and liability company in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted ExceptionsFlorida, and all items that each of Equipmentits constituent members, Inventory as applicable, are in good standing, have the right and other personal property have been fully paid for, power to authorize the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, that all such actions have been duly and properly authorized by all necessary partnership action(s)proper, legal and duly executed authorized actions. The Seller shall order and delivered by general partners of Seller so authorized. This Agreement constitutes tender to Flagler for distribution to Purchaser at the Closing, a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and good standing certificate issued by the availability Florida secretary of injunctive relief, specific performance and other equitable remedies). Except as contemplated state to confirm that the Seller is in good standing under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance the laws of the transactions contemplated by this AgreementState of Florida. The sale transaction contemplated by this Agreement is being made tender of such good standing certificate shall in connection with no way release or excuse Seller from the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1representations, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution warranties and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are obligations contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position first sentence of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k10(a)(v).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of except for the date of this AgreementLender Consents, Seller has 136 full-time active employees in the operation of the Businessno other consents from any person, and 31 part-time employees.
(vii) Seller has no retiremententity, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission lender or other administrative authority, pending, or, third party of whatever nature or kind are required in order to the best enter into this Agreement and perform all of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.;
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Glimcher Realty Trust)
Seller’s Representations and Warranties. As an inducement to Purchaser to enter into this Agreement, Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendamliability company, duly organized, organized and validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority Delaware, is qualified to conduct the Business as the Business is now being conducted.
(b) Except as set forth transact business in the Disclosure ScheduleState of New Jersey, Seller holds good and marketable title to has the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents to consummate the transactions herein contemplated, and instruments to be executed the execution and delivery hereof and the performance by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents of its obligations hereunder will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners not violate or constitute an event of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its default under the terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance provisions of any governmental body agreement, document or agency prohibiting Seller's other instrument to which Seller is a party or by which it or the Property are bound;
(b) Except for compliance with ISRA, the execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of by Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions transaction contemplated by this Agreement and hereby in the manner contemplated herein will not, to Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller’s Actual Knowledge, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach violate any provision of any of Legal Requirement to which Seller or the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsProperty is subject, or of violate any statute or administrative regulationjudgment, or of any order, writ, injunction, judgment injunction or decree of any court applicable to Seller or the Property;
(c) This Agreement is the legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally;
(d) Subject to compliance with ISRA, the execution, delivery and performance of this Agreement and the documents to be executed and delivered by Seller at the Closing pursuant to Section 7.2 do not require the consent or authorization of any governmental authority or private party or body other than any approvals or consents of Seller’s directors, members, managers, shareholders or partners which have been obtained;
(e) Except as disclosed in the Environmental Documents and with the exception of ISRA Case No. 88717, to the Actual Knowledge of Seller, there are no proceedings at law or in equity before any court, grand jury, administrative agency or other investigative body, or governmental department, commission, board, agency, bureau or instrumentality of any arbitration award.kind affecting Seller or the Property that (i) involve the validity or enforceability of this Agreement, (ii) enjoin or prevent or threaten to enjoin or prevent the performance of Seller’s obligations hereunder, or (iii) relate specifically to the Property or the title thereto, and Seller has not been served with process in any such proceeding;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party toto any contract of sale, option to purchase, right of first refusal or first offer, lease or occupancy agreement in force or effect with respect to the Property, or bound byany part thereof, recorded or unrecorded;
(g) Seller has not received notice from any unexpiredgovernmental authority that there are any violations of law, undischarged or unsatisfied written or oral contractincluding environmental laws, agreementzoning laws and building codes, indenturewith respect to the Property, mortgageor, debentureexcept as disclosed in the Environmental Documents and with the exception of ISRA Case No. 88717, note that there are any Hazardous Substances at the Property in excess of governmental tolerances;
(h) Seller has not received any notice of any condemnation proceeding or other instrument under proceeding in the terms nature of which performance by Seller according eminent domain with respect to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:Property;
(i) there is All sums payable by reason of any labor or materials heretofore furnished to, or on behalf of, Seller with respect to the Property have been, or in the ordinary course of business prior to the Closing Date will be, paid, and Seller knows of no pending or threatened unfair labor practice charges or employee grievance chargesmaterial dispute in connection therewith;
(iij) there To Seller’s Actual Knowledge, neither the Lands nor the Improvements is no request for union representation, labor strike, dispute, slowdown subject to or stoppage actually pending or, to has been granted any abatement from real estate taxes during the best period of Seller's knowledge, threatened against or directly affecting Seller’s ownership;
(iiik) no grievance Except as may be disclosed in the Environmental Documents and with the exception of ISRA Case No. 88717, Seller has not received any written notice of violation from any governmental agency, entity, department or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor existauthority having jurisdiction over the Property;
(ivl) Xxx Xxxxxxx and Xxxx Xxxxxxxxx are the employment of each of persons at Seller with the Seller's employees is terminable at will without cost most actual knowledge relating to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided representations contained in this Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity5.1, and there are no proceedings other persons now or governmental investigations before any commission recently affiliated with the Seller who have or other administrative authority, pending, or, are likely to have knowledge related to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used representations contained in this Agreement, "Environmental Laws" means all federal, state Section 5.1 greater than Xxx Xxxxxxx and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsXxxx Xxxxxxxxx.
Appears in 1 contract
Samples: Agreement of Sale (Djo Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
Buyer that (a) Seller is a limited partnership liability company that is a direct wholly-owned subsidiary of NACoal existing under the laws of the state of Nevada and is qualified to do business in commendamthe state of North Dakota, (b) the execution and delivery of this Agreement by Seller and the performance of its obligations hereunder have been duly organizedauthorized by the member(s) of Seller, validly existing (c) neither the execution and delivery of this Agreement nor the performance of its obligations hereunder by Seller shall, or after the lapse of time or giving of notice shall, conflict with, violate or result in good standinga breach of, or constitute a default under the limited liability company agreement of Seller or any Applicable Laws (including for purposes of this clause (c) the laws of the State of Louisiana. Nevada), or conflict with, violate or result in a breach of or constitute a default under any material agreement to which it is a party or by which it or any of its properties is bound, or any judgment, order, award or decree to which Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedulea party or by which it is bound, Seller holds good and marketable title to the Purchased Assetsor require any approval, free and clear of all mortgagesconsent, options, liens, charges, easements, agreements, claims, rights, restrictions authorization or other encumbrances action by any court, governmental authority or regulatory body or any creditor of Seller or any kind or nature other Person, other than issuance of permits for the Permitted ExceptionsMine as required by Applicable Laws, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (xd) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, Seller and is enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement as such enforceability may be affected limited by laws relating to (i) applicable bankruptcy, insolvency, reorganization, insolvency and moratorium or other similar laws affecting the enforcement of creditors' rights generally and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) general principles of equity (regardless of whether such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred enforceability is considered in the due observance a proceeding in equity or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(klaw), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(ie) there is no pending action, proceeding or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, investigation pending, or, to the best knowledge of Seller's knowledge, threatened, threatened against Seller or its Affiliatesit which individually, or with respect to in the consummation of the transaction contemplated herebyaggregate, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with impair in any material way Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in under this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(ci) Seller has full partnership the power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents")carry out its obligations hereunder. This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's The execution, delivery and performance of this Agreement and the transactions contemplated other agreements and documents to be executed and delivered by Seller pursuant to the provisions of this AgreementAgreement have been duly authorized by all necessary municipal action on the part of Seller.
(ii) Seller has not entered into any agreement to sell, or otherwise dispose of its interest in the Property or any part thereof. The sale transaction contemplated by To the best of Seller’s knowledge, no person, firm, corporation or other entity has any right or option to acquire the Property, or any part thereof, from Seller, other than Buyer as herein provided. While this Agreement is being made in connection with effect and prior to the winding-up of Closing, Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1will not voluntarily convey, 1980.
(d) No consent, authorization, order transfer or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and encumber the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court Property or any governmental authority part thereof or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected interest therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to“foreign person” as such term is defined in Section 1445(f)(3) of the Internal Revenue Code of 1986, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closingas amended.
(miv) Except as disclosed on the Disclosure ScheduleTo Seller’s knowledge, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges condemnation or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, similar proceedings to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each take any portion of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment Property by power of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Sellereminent domain.
(v) The Disclosure Schedule contains This Agreement has been duly executed and delivered on behalf of Seller and is a true and complete list of all employees who are employed by the Seller as of the date hereoflegal, valid, and said list correctly reflects their salariesbinding obligation of Seller enforceable against it in accordance with its terms, wagesexcept as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other compensation (other than benefits under laws or equitable principles relating to or affecting the employee welfare, benefit and similar plans), dates enforcement of employment and positionscreditors’ rights.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure ScheduleTo Seller’s knowledge, there is are no litigation actions, suits, proceedings or proceedinginvestigations, in either at law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authorityauthority in any United States or foreign jurisdiction, pending, of any kind now pending or, to Seller’s knowledge, threatened or proposed in any manner, or any circumstances which should or could reasonably form the basis of any such action, suit, proceeding or investigation, involving Seller or any of its properties or assets that: (i) questions the validity of this Agreement; or (ii) seeks to delay, prohibit or restrict in any manner any action taken or contemplated to be taken by Seller under this Agreement. When used in this Agreement the term “Seller’s knowledge” or to the “best of Seller’s knowledge” or similar phrases, means the actual knowledge of Xxxxxx X. Xxxxx.
(vii) To the best of Seller's ’s knowledge, threatenedthe Property is not subject to any leases, against Seller occupancy or its Affiliatesuse agreements, or with respect to the consummation is free and clear of all tenants, and that there are no parties in possession of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderProperty.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Except as otherwise set forth in Schedule A, Seller hereby represents and warrants to Purchaser Buyer that, as of the Effective Date and as of the Closing Date: (i) Seller or its affiliate is the lawful, beneficial and exclusive owner of the Purchased Assets, and Seller will have the unrestricted right to sell or cause the sale of such Purchased Assets and to assign the Station Contracts to Buyer free and clear of all Liens; (ii) this Agreement has been duly authorized and approved by all required corporate action of Seller; (iii) neither the execution nor the delivery of this Agreement nor the consummation of the transaction contemplated hereby will conflict with, or result in any violation or default under, any term of the articles of incorporation, organizational documents, or by-laws of Seller, or any agreement, mortgage, indenture, license, permit, lease or 3 other instrument, judgment, decree, order, law or regulation by which Seller is bound; (iv) the Purchased Assets are in good working order and repair, subject to ordinary wear and tear, and are sufficient to operate the Stations as currently operated by Seller and to the best of Seller's knowledge and except as set forth there are no material changes in the Disclosure Schedule:
Equipment transferred with the System as listed on the summary of Licenses and Equipment attached to Schedule A; (av) Seller is a limited partnership in commendamthe lawful grantee of the Licenses and has the right, duly organizedupon grant of FCC Consent thereto, validly existing to assign the Licenses to Buyer; (vi) the Licenses are valid and in good standing, under standing with the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted ExceptionsFCC, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct compliance in all material respects; (ii) such Permits constitute respects with all statutes, rules, and regulations concerning construction, loading, and spacing of the Permits currently necessary for Licenses or the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected facilities associated therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments federal statutes, Rules, regulations, and policies of the FCC applicable to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or bothLicenses, or the happening of Stations (collectively, the "Laws"); (vii) the Stations are not currently short-spaced by any further event or conditionthird party, would become a default by Seller thereunder. Seller has given (or will givenor, during after the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms execution of this Agreement by both Parties, will they be a default or an event of accelerationshort-spaced by any third parties, or whereby timely performance by Seller according will they be subject to or operating under any agreement encumbering any of the terms Licenses or any FCC waiver of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement otherwise applicable Laws; (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(iviii) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against action by the FCC or directly affecting Seller;
(iii) no grievance any other governmental agency or arbitration proceeding arising out of third party to suspend, revoke, terminate or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each challenge any of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries Licenses or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in otherwise investigate the operation of the Business, and 31 part-time employees.
Stations; (viiix) Seller no person or entity holds or has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any been granted a right of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission first refusal or other administrative authority, pending, or, right or option to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of purchase the Purchased Assets, the Stations or any of Seller's personnelpart thereof; (x) the Stations are fully constructed and operational as required by the Laws; (xi) all information provided by Seller to Buyer concerning the Stations, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) SellerLicenses, the Purchased Assets and the Business assumed liabilities listed on Schedule A including, but not limited to, all historical financial information, are true and complete in compliance with all Environmental Laws material respects and there has been no material decrease in the revenue generated from the System as reflected in the October 2004 financials and subsequent transmittals from Seller to Buyer through the Interim Closing; (as herein definedxii) Seller is not in default under any of the Station Contracts; (xiii) all Station Contracts and customer contracts are fully assignable by Seller to Buyer, subject to the Parties obtaining any Environmental Permits necessary third party consents to the assignment thereof and (as herein defined). A copy of any notice, citation, inquiry or complaint which xiv) Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses paid all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all applicable federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and taxes due and/or payable with respect to the common law, which pertain operation of the System prior to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsthe Interim Closing .
Appears in 1 contract
Samples: Asset Purchase Agreement (Champion Communication Services Inc)
Seller’s Representations and Warranties. Seller hereby represents --------------------------------------- and warrants to Buyer that:
(a) to the best knowledge and belief the Buyer shall receive, pursuant to this Agreement as of the Closing Date, complete and exclusive right, title, and interest in and to the F.F.&E. And all tangible and intangible property rights existing in the Software and Domain Names, free and clear of any and all Liabilities, including, without limitation, any claims asserted by SII, Shareholders or its Affiliates, except for those interests of third parties pursuant to existing agreements as set forth in Section 6 of this Agreement;
(b) the Seller has acquired, through a proceeding under Article 9 of the Uniform Commercial Code of the State of California, the property listed in Exhibit B hereof from SII. The Seller has not conducted any investigation of the property and can only warrant that to the best of its knowledge and belief, the proceeding under Article 9 was properly held and Seller has acquired whatever interest SII held in the property described in Exhibit B hereof. Subject to the limitations of the above, Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and belief that Buyer shall receive pursuant to this Agreement as of the Closing Date, all of Seller's right, title and interest in and to the F.F.&E. And all of Seller's tangible and intangible property rights existing in the software and Domain Names.
(c) to the best knowledge and belief of Seller, all personnel, including employees, agents, consultants, and contractors, who have contributed to, or participated in, the conception and development of the software either (1) have been party to a formal, written, work-for-hire agreement with the developer of the Software that has accorded the developer of the Software full, effective, and exclusive original ownership of all tangible and intangible property arising with respect to the Software, notwithstanding the contribution of any such third parties, or (2) have executed appropriate instruments of assignment in favor of the developer of the Software as assignee that have conveyed to the developer of the Software full, effective, and exclusive ownership of all tangible and intangible property thereby arising with respect to the Software, notwithstanding the contribution of any such third parties;
(d) except as identified in the schedules set forth in Exhibit "H", attached hereto and incorporated herein by this reference, Seller has made no agreements or arrangements in effect with respect to the Disclosure Schedule:marketing, distribution, licensing, or promotion of the Software by any independent salesperson, distributor, sublicensor, or other remarketer or sales organization.
(ae) Seller, as a shareholder in Buyer, shall be subject to the terms and conditions applicable to the shareholders of the Buyer, pursuant to its Articles of Incorporation, By- Laws, Shareholder Agreement, or any other such instruments, now promulgated, or as may be promulgated in the future, relating to the ownership of such equity interests in Buyer.
(f) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaCalifornia and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted or contemplated. Seller has all necessary requisite power and authority to conduct execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Business as the Business is now being conductedtransaction contemplated hereby.
(bg) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's The execution, delivery and performance by Seller, and the consummation of the transactions contemplated hereby, have been duly and validly authorized b all necessary action on the part of Seller. This Agreement has been duly and validly executed and delivered by this Agreement. The sale transaction contemplated by this Agreement is being made Seller and, when executed and delivered in connection accordance with its terms, shall constitute the valid and binding obligations of Seller, enforceable in accordance with the winding-up of terms thereof. Neither the execution, delivery or performance by Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and nor the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Sellerhereby, nor the consummation compliance by Seller of the transactions herein contemplated, with any provision hereof will conflict with (i) violate or result in a breach of any provision of the terms, conditions or provisions Articles of Organization and Operating Agreement of Seller's Articles , in each case as in effect of Partnership In Commendam or other organizational documentsthe date hereof, or of (ii) conflict with any statute or administrative law, statute, ordinance, rule, regulation, or of any order, writ, judgment, injunction, judgment award, decree, concession, grant, franchise, restriction or decree of any court agreement of, form or with any governmental authority applicable to Seller. No permit, consent or approval of or by, or any arbitration award.
(f) notification of or filing with, any person or entity is required in connection with the execution, delivery or performance by Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies the consummation of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearstransactions contemplated hereby.
(h) Complete and accurate copies There are no outstanding orders, judgments, injunctions, awards or decrees of the unaudited balance sheetany court or other governmental authority or arbitration tribunal against Seller. Seller is not in default of any such order, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31judgment, 1997injunction, award or decree. There are contained no action, suits, claims, investigations or legal, administrative or arbitration proceedings pending or threatened against Seller, whether at law or in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereofequity, and the results of operations of Seller for the period covered whether civil or criminal in nature, or whether before or by said statements, in accordance with GAAP, consistently appliedany court or other governmental authority.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to To the best knowledge and belief of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation no Liabilities or obligations of the Businessany nature, whether absolute, accrued, contingent or otherwise, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (due or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), become due (including, without limitation, lawsany liability for taxes and interest, statutes penalties and regulations relating other charges payable with respect to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any such liability or obligation) which would affect the Buyer or the Assets or become the obligation of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (Buyer as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation a result of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawstransactions consummated hereby.
Appears in 1 contract
Seller’s Representations and Warranties. (a) The Seller represents represents, warrants and warrants to Purchaser that, to covenants that on the best date of Seller's knowledge this Agreement and except as set forth in on the Disclosure ScheduleClosing Date:
(ai) Seller It is a limited partnership in commendam, duly organized, validly organized and existing under and in good standing, under by virtue of the laws of the State of Louisiana. Seller Delaware;
a) it has all necessary full legal right, power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good execute and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionsdeliver, and to perform all items of Equipmentits obligations under, Inventory this Agreement and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
Bills of Sale (c) Seller has full partnership power and authority to enter into and perform under (xas hereinafter defined); b) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenconstitutes, and Seller's Ancillary Documents upon execution and delivery thereof the Bills of Sale will beconstitute, duly authorized by all necessary partnership action(s)the legal, valid and duly executed and delivered by general partners binding obligations of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its the respective terms (except hereof and thereof; and c) it has legal power and authority to sell the Vessels pursuant to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency terms and creditors' rights and by the availability conditions of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.;
(diii) No consentExcept for required Xxxx-Xxxxx-Xxxxxx filings, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation performance by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of its obligations hereunder, requires the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance consent or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss approval of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or bothnotice to, or the happening registration, filing or recording with, or the taking of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described other action in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound byrespect of, any unexpiredfederal, undischarged state, local or unsatisfied written foreign government or oral contractgovernmental authority or agency or any other person, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor existfurther action, including any filing or recording of any document is necessary or advisable in order to establish and perfect Buyer's title to and interest in, the Vessels as against Seller and/or third parties in any applicable jurisdiction except for the filings being made with the United States Coast Guard;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there There is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, proceeding now pending or, to the best of Seller's knowledge, threatened, against Seller or its Affiliatesaffecting Seller, in any court or before any regulatory commission, board or other administrative governmental agency which would directly or indirectly adversely affect or impair the title of Buyer to the Vessels or Buyer's ability to operate the Vessels in the coastwise trade, or with respect which, if decided adversely to Seller, would materially adversely affect the consummation business operations or financial condition of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with and/or Seller's ability to perform its obligations hereunder.this Agreement;
(pv) There The Bills of Sale will be effective on the Closing Date to convey to Buyer all of Seller's right, title and interest in and to the Vessels;
(vi) Seller warrants good title, free and clear of all mortgages, liens, encumbrances, levies or claims of any type whatsoever whether recorded, secret, state, maritime or otherwise and agrees to indemnify, hold harmless and defend Buyer from any such mortgages, liens, encumbrances, levies and claims;
(vii) The Vessels are no material claims pending oreligible for documentation in the United States coastwise trade;
(viii) Since the Vessels' last drydocking, to the best of Sellers' knowledge, no Vessel has been grounded, stranded, or suffered any other occurrence or casualty that could have caused or actually did cause any damage to such Vessel's bottom and/or hull or other underwater parts. However, to establish any liability on the Seller under this warranty, the burden shall be on Buyer to establish that the damage pre-dated its acquisition, and any payment by Seller to Buyer for damage discovered after transfer of title is subject to receipt of and is limited to the amount of indemnity received from Seller's knowledgeunderwriters plus the amount of any deductible or copayment for which Seller is responsible under such insurance;
(ix) The contracts and charters listed in Section 13 hereof constitute all of the contracts, anticipated or threatened against Seller with respect charters, and agreements related to (A) the Vessels and (B) Seller's and its affiliates' inland and coastwise movements of petroleum products in quantities of less than 150,000 barrels north of Norfolk, Virginia (excluding inland movements in the local Philadelphia, Pennsylvania, Chesapeake Bay, Delaware Bay and Delaware River markets) and, during the twelve months prior to the quality date of or absence of or defects this Agreement, no other contracts, charters and agreements were in Seller's products or serviceseffect; and
(x) The information provided by Seller to Buyer in connection with the transactions contemplated by this Agreement is accurate and complete in all material respects.
(qb) Seller is not a party toTHE VESSELS ARE SOLD AS IS, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding WHERE IS with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any no warranties of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (other than as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used set forth in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Contract of Sale and Purchase of Vessels (Maritrans Inc /De/)
Seller’s Representations and Warranties. Each Seller severally (and not jointly) represents and warrants to the Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) such Seller is a limited partnership in commendam, duly organized, validly existing authorized to execute and in good standing, under deliver this Agreement and to perform his or its obligations hereunder and to consummate the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.transactions contemplated hereby;
(b) Except as set forth this Agreement is a valid and binding agreement, enforceable against such Seller in accordance with its terms;
(c) such Seller has and will have at the Disclosure Schedule, Seller holds good Closing legal and marketable valid title to the Purchased AssetsShares set forth opposite its name on Schedule A hereto, free and clear of all mortgagesliens and encumbrances and has all power to vote, options, liens, charges, easements, agreements, claims, rights, restrictions or dispose of and exercise all other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and rights with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectivelysuch Shares, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except subject to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability terms of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.;
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution the sale and delivery of this Agreement the Shares to the Purchaser in accordance with the terms hereof will vest in Purchaser legal and Seller's Ancillary Documents valid title to the Shares, free and the consummation by Seller clear of the transactions contemplated by this Agreement all liens and Seller's Ancillary Documents.encumbrances;
(e) Neither neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, the consummation of the transactions contemplated hereby, nor the consummation by Seller performance of the transactions herein contemplatedsuch Seller's obligations hereunder, will conflict (i) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any material contract, agreement, instrument, commitment, arrangement or understanding to which such Seller is a party, or result in the creation of a breach security interest, lien, charge, encumbrance, equity or claim with respect to such Seller's Shares, (ii) require any material consent, authorization or approval of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsPerson, or of (iii) violate or conflict with any statute domestic or administrative foreign law, statute, code, rule, regulation, or of any order, writ, injunction, judgment injunction or decree of any court applicable to such Seller or any governmental authority or of any arbitration award.such Seller's Shares; and
(f) to the best of each Seller's booksknowledge, accounts neither the execution and records aredelivery of this Agreement, and have beenthe consummation of the transactions contemplated hereby, maintained in nor the performance of each Seller's usualobligations hereunder, regular and ordinary mannerwill result in a violation or breach of, in accordance or constitute (with prudent business practices and generally accepted accounting practicesor without due notice or lapse of time or both) a default (or give rise to any right of termination, and all material transactions to which Seller is cancellation or has been a party are properly reflected therein.
(gacceleration) Complete and accurate copies under any policies of the audited balance sheetsTesco or any of its subsidiaries including, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, those governing the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation trading of the Business or any restaurant, bar, gift shop or other operation connected therewithShares.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Stock Purchase Agreement (LRP v Luxembourg Holdings S.a r.l.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser Buyer as of the date hereof that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing organized and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.Delaware;
(b) Except as set forth Seller is qualified to do business in the Disclosure ScheduleCommonwealth of Massachusetts, and is in good standing under its laws;
(c) Subject only to entry of the Sale Order, Seller holds good is duly authorized to execute and perform this Agreement, and this Agreement is binding on Seller in accordance with its terms;
(d) Seller owns good, valid and marketable title to the Purchased Assets, free and clear of all mortgagesEncumbrances, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than Encumbrances that will be discharged upon entry of the Permitted ExceptionsSale Order, and all items of Equipment, Inventory and other personal property have been fully paid for, subject only to Seller’s obligations under the Pieris Agreement;
(e) after giving effect to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance consummation of the transactions contemplated by this Agreement. The sale transaction contemplated , including the entry by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller Bankruptcy Court of the transactions contemplated by this Agreement Sale Order, Buyer will have good and Seller's Ancillary Documents.
(e) Neither marketable title to the execution Purchased Assets free and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach clear of any of and all Encumbrances (other than Buyer’s obligations to perform the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.Assumed Liabilities);
(f) Seller's booksthe Purchased Assets constitute all of the assets owned by Seller in the Program and constitute all of the rights, accounts property and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions assets necessary to which Seller is or has been a party are properly reflected therein.conduct the Program as currently conducted;
(g) Complete and accurate copies to the Knowledge of Seller, no approvals (other than entry of the audited balance sheetsSale Order) are required in order for Seller to perform its obligations under this Agreement;
(h) there are no legal actions, statements suits, litigation, arbitration, or legal proceedings (including any civil, criminal, administrative, investigative or appellate proceeding) pending, or to Knowledge of income and retained earningsSeller threatened, statements of cash flows, and notes which relate to financial statements the Purchased Assets or the Assumed Liabilities;
(together with any supplementary information theretoi) to the Knowledge of Seller, all as of the Intellectual Property Rights are valid, subsisting and for enforceable;
(j) to the years ended December 31Knowledge of Seller, 1993no Intellectual Property infringes, 1994violates or makes unlawful use of any intellectual property (whether patents, 1995trademarks, copyrights, or other registered or unregistered intellectual property) of, or contains any intellectual property misappropriated from, any other Person;
(k) the Pieris Agreement is a legal, valid and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position binding obligation of Seller as and, to the Knowledge of the respective dates thereofSeller, each other party thereto, enforceable against Seller and the results of operations and cash flows of Seller for the respective periods covered by said statements, each such other party in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.its terms;
(hl) Complete and accurate copies neither Seller nor, to the Knowledge of Seller, any other party thereto, is in breach or has failed to perform any obligation under the unaudited balance sheet, statement Pieris Agreement or delivered written notice of income and retained earnings and statement of cash flows of Seller as of and for such party’s intent to terminate or otherwise modify the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore correctedPieris Agreement; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(jm) Seller has not suffered engaged a finder or been threatened broker in connection with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects his sale of the Business, including, without limiting Purchased Assets. Except for the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller representations and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to warranties contained in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller the Purchased Assets shall be transferred to Buyer on an as-is and where-is basis, with no other representations or warranties of any nature whatsoever. Buyer acknowledges that Buyer has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except had such opportunity as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, Buyer deems sufficient to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or conduct due diligence with respect to the consummation of the transaction contemplated herebyPurchased Assets; and Buyer has not relied and will not rely on any representation, warranty or other statement made or to be made by Seller, or the use any officer, employee, counsel or agent of the Purchased Assets (whether used by Purchaser after the Closing either of them, except as expressly set forth in this Section 9 or any certificate delivered by Seller prior thereto)to Buyer at Closing. For the avoidance of doubt, or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any none of the foregoing which representations or warranties shall be construed to imply that (i) Seller continues to conduct the Program despite being in the process of liquidation, or (ii) Seller has received within the past three years are attached any Intellectual Property Rights other than pursuant to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are patent applications identified in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.Exhibit B.
Appears in 1 contract
Samples: Asset Purchase Agreement (Enumeral Biomedical Holdings, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure ScheduleExhibit, Seller holds hereby represents and warrants to Purchaser as follows:
6.1 MEI is validly existing as a corporation and in good and marketable title to standing under the Purchased Assets, free and clear laws of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances the Commonwealth of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentPennsylvania.
(c) Seller 6.2 MEI has full partnership corporate power and authority to own and operate its properties, to carry on its business as presently conducted, and to enter into and perform its obligations under (x) this Agreement Purchase Agreement, the Exhibit Agreements and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation agreements entered into or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made undertaken in connection with the winding-up of Seller as transactions contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980hereby.
(d) 6.3 No consentGovernmental Authorization of or by, authorizationor the giving of notice to, order or approval the registration with or the taking of any other action in respect of, any federal, state, municipal or filing other governmental department, commission, board, bureau, agency or instrumentality, and no filing, recording, publication or registration within any public office or any other place, any governmental authority is now required or other person is required for Seller's necessary to authorize the execution and delivery of this Purchase Agreement and Seller's Ancillary Documents and the consummation by Seller or any of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsExhibit Agreements.
(e) 6.4 Neither the execution and delivery of this Purchase Agreement and Seller's Ancillary Documents by Selleror any of the Exhibit Agreements to which Seller or MEI is a party, the performance of their respective obligations thereunder, nor the consummation by Seller either of the transactions herein contemplated, contemplated thereby will conflict with or result in any breach of, or constitute a breach default under, or result in the creation or imposition of any Lien upon any property or assets of the termsSeller or MEI under any applicable law, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsrule, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree order, the charter documents of any court MEI or any governmental authority or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenturedeed of trust, note or other instrument under or agreement to which the terms Seller or MEI is a party or by which either of them may be bound or to which any of their respective properties or assets may be subject.
6.5 The execution, delivery and performance by Seller according to or MEI, as the terms case may be, of this Purchase Agreement will be and any of the Exhibit Agreements have been duly authorized by all necessary action. Assuming the due authorization, execution and delivery thereof by each of the other parties thereto, each such agreements constitute legal, valid and binding obligations of Seller or MEI, as the case may be, enforceable in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally.
6.6 Neither Seller nor MEI is in default under any mortgage, deed of trust, indenture or other material instrument or agreement to which either is a default party or an event by which either or any of acceleration, their respective properties or whereby timely performance by Seller according to the terms of this Agreement assets may be prohibitedbound, prevented which default might have a material adverse effect on Seller or delayed. If MEI or on any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closingof the transactions contemplated hereby.
(m) Except as disclosed on the Disclosure Schedule, there 6.7 There are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against suits or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its AffiliatesMEI, which, if determined adversely, would adversely affect the business or with respect to financial condition of Seller or MEI or the consummation of the transaction transactions contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), this Purchase Agreement including, without limitation, lawsthe development of the Project.
6.8 Seller, statutes at the Closing, will have good and regulations relating marketable title to equal employment opportunitiesthe Shares and MEI will have good and marketable title to its assets, fair employment practicesin each case, unfair labor practices, terms of employment, occupational health free and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies clear of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleLiens.
(s) Seller, the Purchased Assets and the Business are 6.9 The conduct of MEI's business is in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulationslaws, ordinances, rules, regulations or orders applicable thereto, other than laws, ordinances, rules, regulations or orders with which a failure to comply, in any case or in the aggregate, would not have a material adverse effect on the development and policiesoperation of the Project.
6.10 Neither Seller nor MEI is a holding company, all court orders and decrees and arbitration awardsor a subsidiary or affiliate of a holding company, and or a public utility, within the common lawmeaning of the Public Utility Holding Company Act of 1935, which pertain to hazardous substances as amended, or materialsa public utility within the meaning of the Federal Power Act, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsas amended.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Environmental Power Corp)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(ai) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds owns good and marketable fee simple title to the Purchased AssetsProperty, free and clear no party has the right or option to acquire all or any portion of all mortgagesthe Property, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, Purchaser pursuant to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.terms of this Agreement,
(cii) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(diii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iv) there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(v) Seller has no knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(vi) Seller has no knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vii) there are no service contracts, equipment leases and/or maintenance agreements affecting the Property, other than Contracts, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below,
(viii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(ix) there are and will be no parties in possession of, without limitation: employment or claiming any possession to, any portion of the Property, other than tenants under Leases, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below, as reflected on the rent roll to be provided by Seller to Purchaser at Closing (the “Rent Roll”),
(x) at Closing there will be no unpaid bills or claims in connection with any construction or repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(xi) the Rent Roll shall be true, correct and employment-related agreements; covenants not complete in all material respects and no concessions, discounts or other periods of free or discounted rent shall have been given other than those reflected on such Rent Roll,
(xii) to compete; loan agreementsSeller’s knowledge, notesall information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, is true, correct and complete in all material respects,
(xiii) Subject to any matters disclosed in Seller’s environmental report dated March 13, 2017, prepared by Terracon Consultants, Inc. (the “Existing Environmental Report), a copy of which shall be provided by Seller to Buyer as part of the Due Diligence Items, Seller has no knowledge, and security agreements (other than noteshas received no notice, loan agreements and related security documents that are being satisfied regarding any environmental contamination on, at or prior adjacent to Closing); sales representativethe Property,
(xiv) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, distribution, franchise, advertising and similar agreements; concession except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or occupancy agreements; leases and subleases insurer,
(xv) there are no employment agreements of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xvi) the Improvements will be, and as of the Closing Date shall have been, constructed strictly in full force accordance with the Plans and binding upon Specifications, with no defects in the parties thereto. No default by Seller has occurred thereunder anddrainage systems, foundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property,
(xvii) the Improvements, following completion, shall be free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xviii) to the best of Seller's knowledge, no default by ’s knowledge and subject to any matters disclosed in the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleExisting Environmental Report, there are no commissions underground storage tanks located on or referral fees under the Property, there are no conditions on, at or relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for Property which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.non-compliance
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the schedule delivered by Seller to Purchaser concurrently herewith and identified as the "Disclosure Schedule":
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of LouisianaNew Jersey. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (xi) this Agreement and (yii) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenwill be, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation duly authorized officers of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(dc) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's the execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions transaction contemplated by this Agreement and Seller's Ancillary DocumentsDocuments except for: (i) approvals of the transfer to Purchaser of the licenses and permits and third party payor contracts for the Business as permitted, or issuance thereof directly to Purchaser; and (ii) any other Consents required to carry out the transactions contemplated hereby or described herein.
(ed) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplatedtransaction contemplated hereby, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsof
(e) Seller has good and marketable title to, or and the power to sell, the Purchased Assets, free and clear of any statute liens, claims, encumbrances and security interests, except for the following liens: (i) statutory liens for taxes not yet due; (ii) liens of landlords, carriers, warehousemen, mechanics and materialmen for sums not yet due; (iv) liens incurred or administrative regulationdeposits made in connection with workers' compensation, unemployment insurance and the like or to secure other performance and obligations; and (v) minor irregularities of any order, writ, injunction, judgment title which do not in the aggregate materially detract from the value or decree use of any court the Purchased Assets. Seller makes no representation or any governmental authority or of any arbitration awardwarranty as to title to the Premises.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which No default by Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of under any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and leases or agreements to which Seller is a party and which relate to the Center or the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder, which default would have a Material Adverse Effect. No event, occurrence or condition exists which, with For the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date purposes of this Agreement, Seller has 136 full-time active employees in "Material Adverse Effect" means a material adverse effect on the operation assets, liabilities, financial condition or results of operations of the Business, and 31 part-time employeestaken as a whole.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
that (a) Seller is a limited partnership in commendamhas the full partnership/corporate right, duly organizedpower, validly existing and in good standingauthority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on Seller under the laws of the State of Louisiana. Seller has all necessary power this Agreement, and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in neither the Disclosure Schedule, Seller holds good and marketable title to execution nor the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to by which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best or any of Seller's knowledgeassets is bound, and (c) except as disclosed to Purchaser in writing, Seller has no default by the other contracting parties actual knowledge that Seller has occurred thereunder. No eventreceived from any governmental authority, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening holder of any further event mortgage or condition, would become a default by Seller thereunder. Seller has given board of fire underwriters (or will give, during the Inspection Periodother body performing similar functions) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
notices (i) there is no pending requiring any work, repairs, construction, alterations or threatened unfair labor practice charges installations on or employee grievance charges;
in connection with the Property in order to comply with any applicable law, regulation or other governmental requirement, or (ii) there is no request for union representationasserting any violation of any applicable law, labor strikeregulation or other governmental requirement, dispute, slowdown or stoppage actually pending or, and (d) to the best of Seller's actual knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation not received any written notices of condemnation proceedings, zoning change or special assessments or uncorrected violations of the Businessapplicable housing, and 31 part-time employees.
(vii) Seller has no retirementbuilding, pensionsafety, profit sharing, employee welfare fire or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or ordinances with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after Property. The Seller's representations and warranties set forth in this SECTION 5.4 shall survive the Closing or by Seller prior thereto)for a period of eighteen (18) months, or which would restrict or interfere with Seller's ability and any action filed pursuant to perform its obligations hereunder.
(p) There are no material claims pending or, to the best a breach of Seller's knowledgerepresentations and warranties set forth in this SECTION 5.4 must be commenced, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
if at all, within twenty-four (q24) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any months of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleClosing.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tyler Technologies Inc)
Seller’s Representations and Warranties. Each Seller represents hereby represents, warrants and warrants covenants, severally and not jointly, to Purchaser that, to as follows as of the best of Seller's knowledge and except as set forth in the Disclosure Scheduledate hereof:
(a) Seller is a limited partnership in commendam, an entity duly organized, organized and validly existing and in good standing, under the laws of the State jurisdiction of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedits formation.
(b) Except Seller has all requisite power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered on behalf of Seller and shall constitute the legal, valid and binding obligation of Seller enforceable against it in accordance with its terms, except as set forth in the Disclosure Schedulesuch enforceability may be limited by general principles of equity or to applicable bankruptcy, Seller holds good and marketable title to the Purchased Assetsinsolvency, free and clear of all mortgagesreorganization, optionsmoratorium, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory liquidation and other personal property have been fully paid forsimilar laws relating to, to or affecting generally, the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases enforcement of applicable creditors' rights and with respect to which there are no installments due which are delinquentremedies.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's The execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
hereby will not (ea) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any violation of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) documents of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4b) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor disputeconflict with, or any material adverse change inconstitute a default (or an event which with notice or lapse of time or both would become a default) under, or loss give to others any rights of termination, amendment, acceleration or cancellation of, any relationship between Seller and any of its customersagreement, suppliers indenture or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments instrument to which Seller is a party, are or (c) result in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening a violation of any further event law, rule, regulation, order, judgment or conditiondecree (including federal and state securities laws) applicable to Seller, except in the case of clauses (b) and (c) above, for such conflicts, defaults, rights or violations which would become not, individually or in the aggregate, reasonably be expected to have a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed material adverse effect on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees ability of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(pd) No consent, approval, permit, order, notification, waiver (including any waiver of a right of first refusal) or authorization of, or any exemption from registration, declaration or filing with, any person (governmental or private) is required in connection with the execution, delivery and performance by Seller of this Agreement or the consummation by Seller of the transactions contemplated hereby. There is no agreement, other than this Agreement, to sell all or any portion of the Debentures and no person has a right of co-sale or tag-along right that would be triggered hereby.
(e) Seller has good and valid title to the Debentures free and clear of lien, mortgage, security interest, pledge, charge or encumbrance of any kind ("Liens"). Delivery of the Debentures to Purchaser will pass to Purchaser good and valid title to the Debentures, free and clear of Liens other than those of Purchaser or under securities laws.
(f) Seller is acting solely for Seller's own account, and has made Seller's own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for Seller based upon Seller's own judgment and upon advice of such advisors as Seller deems necessary. Seller acknowledges and agrees that Seller is not relying, and has not relied, upon any communication (written or oral) of Purchaser or any affiliate, employee or agent of Purchaser with respect to the legal, accounting, tax or other implications of this Agreement and that Seller has conducted Seller's own analyses of the legal, accounting, tax and other implications hereof and thereof; it being understood that information and explanations related to the terms and conditions of this Agreement shall not be considered investment advice or a recommendation to enter into this Agreement. Seller acknowledges that neither Purchaser nor any affiliate, employee or agent of Purchaser is acting as a fiduciary for or an advisor to Seller in respect of this Agreement.
(g) There are is no material claims action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency or self regulatory organization or body pending or, to the best knowledge of Seller's knowledge, anticipated or threatened against or affecting Seller that could reasonably be expected to have a material adverse affect on the ability of Seller to perform its obligations hereunder.
(h) Seller has taken no action that would give rise to any claim by any person for brokerage commissions, finder's fees or similar payments relating to this Agreement or the transactions contemplated hereby.
(i) Neither the Seller nor any of its affiliates is an officer, director or a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “ 1934 Act ”)). Neither Seller nor any of its affiliates is, (a) effecting or seeking, offering or proposing (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any material acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries out of the ordinary course of business , (ii) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the quality Company or any of or absence of or defects in Seller's products or services.
(q) Seller is not a party toits subsidiaries, or bound by(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) forming, any decree, order, judgment joining or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authorityway participating in a “group” (as defined under the 0000 Xxx) with respect to its propertiesthe Company with respect to the matters set forth in (a) above; (c) otherwise acting, assetsalone or in concert with others, personnel to seek to control or business activities.
influence the management, Board of Directors or policies of the Company; or (rd) Seller is not in violation of, entering into any discussions or delinquent in arrangements with any third party with respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the foregoing. The Purchased Assets, any Debentures have been continuously held by the Seller for a period of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any at least twelve (12) months as of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduledate hereof.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Securities Purchase Agreement (Axion International Holdings, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to its actual knowledge to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendampartnership, is duly organized, validly existing and in good standing, organized under the laws of the State of Louisiana. Seller Texas and has the power to enter into this Agreement and to exercise and deliver this Agreement and to perform all necessary power duties and authority to conduct the Business as the Business is now being conductedobligations imposed upon it hereunder.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by obtained all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller authorizations required in accordance connection with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of this Agreement and has obtained the transactions contemplated by consent of all entities and parties necessary to bind Purchaser to this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(ec) Neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of any agreement or instrument to which Seller, or any partner or related entity or affiliate of Purchaser, is a party or by which Seller, any partner or related entity or affiliate of Seller, or any of Seller's Articles assets is bound.
(d) The Rent Roll prepared by Seller, the Operating Statements prepared by Seller, accurate and complete in all material respects.
(e) Neither Seller nor any person in the employ of Partnership In Commendam Seller has received any written notice of any lawsuits, claims, condemnation, zoning violations, or other organizational documents, adverse claims pending or of 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 awardthreatened affecting the Property.
(f) Seller's booksAt the Closing there will be no unpaid bills or claims in connection with any repair of the Improvements other than any unpaid bills or claims arising in the ordinary course of business, accounts and records are, and have been, maintained payable in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected thereinnormal billing cycle.
(g) Complete Seller is not a foreign person within the meaning of Sections 1445 and accurate copies 7701 of the audited balance sheetsInternal Revenue Code of 1986 ("IRS"), statements of income and retained earningsi.e., statements of cash flowsSeller is not a non-resident alien, and notes to financial statements foreign corporation, foreign partnership, foreign trust or foreign estate (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants those terms are contained defined in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately IRS and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsIncome Tax Regulations).
(h) Complete At the Closing there will be no outstanding and accurate copies of unpaid tenant improvement costs or real estate lasing commissions in connection with any Leases in existence on the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedEffective Date.
(i) The Disclosure Schedule lists all existing Permits and such list Property is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any noticeapplicable laws, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutesordinances, regulations, ordinancesstatutes, rules, regulations rules and policies, all court orders and decrees and arbitration awards, and restrictions relating to the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsProperty.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser Buyer as of the date hereof and the Closing Date that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, liability company duly organized, validly existing and in good standing, standing under the laws Laws of the State of Louisiana. Texas;
(b) Seller has all necessary requisite power and authority to conduct the Business carry on its business as the Business is now being presently conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all the other documents and instruments agreements contemplated hereby and to be executed by Seller pursuant to perform its obligations under this Agreement (collectively, "Seller's Ancillary Documents")and the other documents and agreements contemplated hereby. This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's The execution, delivery and performance of this Agreement and the transactions contemplated hereunder have been duly and validly authorized by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with all requisite authorizing action on the winding-up of Seller as contemplated under Section 13.02(f) part of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.;
(dc) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's The execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement will not violate, nor be in conflict with, any provision of Seller’s governing documents or any agreement or instrument to which it is a party or by which it or the Assets are bound, except any provision contained in any contract listed on Exhibit “D” or any other agreements customary in the oil and gas industry, or Seller's Ancillary Documents.’s bank financing agreements relating to (1) the Preferential Purchase Rights; (2) required consents to transfer and related provisions; (3) maintenance of uniform interest provisions; and (4) any other third Person approvals or consents contemplated herein or any judgment, decree, order, statute, rule or regulation applicable to Seller or the Assets;
(d) This Agreement, and all documents and instruments required hereunder to be executed and delivered by Seller at Closing, constitute legal, valid and binding obligations of Seller in accordance with their respective terms, subject to applicable bankruptcy and other similar Laws of general application with respect to creditors;
(e) Neither There are no bankruptcy, reorganization or receivership proceedings pending against, being contemplated by or, to the execution and delivery Knowledge of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of threatened against Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.;
(f) Seller's booksNeither Seller nor any Affiliate of Seller has incurred any obligation or Liability, accounts contingent or otherwise, for brokers’ or finders’ fees in connection with this Agreement and records are, and the transaction provided herein for which Buyer shall have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is any Liability or has been a party are properly reflected therein.responsibility;
(g) Complete and accurate copies of Other than as set forth in Exhibit “H,” there are no written demands, actions, suits or administrative, legal or arbitration proceedings relating to the audited balance sheetsAssets (including condemnation, statements of income and retained earningsexpropriation or forfeiture proceedings) pending or, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) the Knowledge of Seller, all as threatened against Seller or any of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.its Affiliates or any Asset;
(h) Complete and accurate copies The transfer of the unaudited balance sheet, statement of income Assets to Buyer will not violate at the Closing Date any covenants or restrictions imposed on Seller by any bank or other financial institution in connection with a mortgage or other instrument and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained will not result in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position creation or imposition of Seller as a lien on any portion of the date thereofAssets, and the results of operations of Seller for the period covered by said statements, except as to those mortgages or instruments to be released at Closing as provided in accordance with GAAP, consistently applied.Section 13.2(f) herein;
(i) The Disclosure Schedule lists all existing Permits Except as set forth on Exhibit “K” , there are no waivers, consents to assign, Preferential Purchase Rights, approvals or similar rights owned by third Persons and required in connection with the conveyance of the Assets from Seller to Buyer;
(j) All tax returns required to be filed with respect to the Assets have been duly and timely filed, each such list tax return is true, correct and complete and correct in all material respects; , and all taxes owed with respect to the Assets (iiwhether or not shown on a tax return) such Permits constitute all have been timely paid in full. There are no liens for taxes on any of the Permits currently necessary for the ownership Assets other than with respect to taxes not yet due and operation of the Businesspayable, including but not limited toand Seller has paid all ad valorem, the food property, production, severance, excise and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance other taxes or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source assessments related to the effect Assets that there is lacking have become due and payable other than any Permit needed such taxes being contested in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.good faith by Seller;
(k) The Disclosure Schedule correctly and completed lists and describes all material contractsExcept as set forth on Exhibit “D,” no Hydrocarbons produced or to be produced from the Assets are subject to any Hydrocarbon sales, leasespurchase or exchange contracts not cancellable on 60 or fewer days’ notice nor does any third Person have any call upon, and agreements option to which Seller is a party and which relate purchase, take-or-pay obligations, dedication rights or similar rights with respect to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not Hydrocarbons produced or to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).be produced from Assets”;
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according Except as set forth on Exhibit “J,” there are no Hydrocarbon imbalances with respect to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.Assets;
(m) Except as disclosed on the Disclosure Schedule, provided in Exhibit “O,” there are no commissions mortgages, liens or referral fees relating to other encumbrances of record affecting the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.Assets other than Permitted Encumbrances;
(n) With If any of the interests comprising the Assets were acquired by Seller under farmout, exploration, development, participation or other agreements and Seller has not as of the Closing Date received assignments to such interests (which are described in Exhibit “M”), then, with respect to employees such Assets, Seller represents to Buyer that except for consents which are subject to Section 4(i) and interests which cannot be assigned due to provisions in applicable agreements prohibiting assignments of Seller:
(i) there is no pending interests which do not meet specified minimum interest requirements, all conditions to earning assignments of record title or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationoperating rights, labor strike, dispute, slowdown or stoppage actually pending oras the case may be, to the best of Seller's knowledge, threatened against or directly affecting such Assets have been fully satisfied by Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation ofmaterial breach of any material contract described on Exhibit “D” and Exhibit “D” sets forth a list of all material contracts, or delinquent in respect toagreements, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or and commitments to which any of the Purchased Assets, any of Seller's personnel, or the Business Assets are subject to: (a) any agreement or contract for the sale, exchange or other disposition of hydrocarbons produced from the Leases or Xxxxx that requires more than sixty (60) days’ prior written notice to which itcancel; (b) any agreement to sell, itselflease, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation farmout or otherwise dispose of any of the foregoing Seller’s interests in any of the Leases other than conventional rights of reassignment; (c) any operating agreement to which Seller’s interests in any of the Leases and/or Xxxxx are subject; (d) any contract that requires Seller to expend more than $20,000.00, net to the Seller’s interest, in any year in connection with the Assets; (e) any option to purchase the hydrocarbons produced from the Assets;
(p) The Assets currently are in material compliance with all applicable Environmental Laws, (i) all necessary governmental permits, licenses, approvals, consents, certificates and other authorizations required by applicable Environmental Laws with regard to the ownership or - 15 - operations of the Assets have been obtained and maintained in effect by such Seller and no notices of unresolved written violations exist in respect of such permits, licenses, approvals, consents, certificates or authorizations except for such permits, licenses, approvals, consents, certificates or other authorizations, and (ii) Seller has not received within any written notice that (A) the past three years Assets are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are not in compliance with all any applicable Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the BusinessLaws, and is in compliance with (B) the provisions of all such Environmental Permits. Copies of all Environmental Permits issued Assets are subject to Seller are attached any pending or, to the Disclosure Schedule. As used in this AgreementSeller’s Knowledge, "threatened Claims which would require Seller, under applicable Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances conduct any investigation or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsremediation.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents The Sellers hereby jointly and warrants severally make the following representations and warranties to Purchaser thatBuyer, to each of which is accurate on the best date hereof and shall be accurate on and as of Seller's knowledge and except as set forth in the Disclosure ScheduleClosing Date:
(a) Seller Each of the Sellers is a limited partnership in commendamduly incorporated or organized, duly organizedas the case may be, validly existing and in good standing, standing under the laws of the State state of Louisianaits organization or incorporation, as the case may be. Seller The ownership of each of the Sellers and their respective managers, directors and officers are reflected on Schedule 3.32(a) and except as set forth on ---------------- Schedule 3.32(a), there are outstanding no rights, warrants or options to ---------------- acquire, exchange or convert any securities of either of the Sellers. Each of the Sellers has all necessary requisite power and authority to conduct execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the Business as transactions contemplated hereby. This Agreement and all other agreements herein contemplated to be executed by the Business is now being conductedSellers constitute (or upon execution will constitute) valid and binding obligations of the Sellers, enforceable against the Sellers in accordance with their respective terms, subject to Bankruptcy Laws and Equitable Principles.
(b) The Interests constitute the only ownership interests of the Company. The Sellers are the record (and beneficial) owners of all of the Interests (with the ownership being as reflected on Schedule 3.2), free and ------------ clear of all Liens. No person (other than the Sellers) has any power or right of any kind, to dispose of or direct the disposition of the Interests or to vote or direct the voting of the Interests. Except as set forth in on Schedule 3.2, there are no agreements or understandings with respect to the Disclosure Schedule, Seller holds ------------ transferability of Interests between the Sellers or between or among the Company and either or both of the Sellers. The Sellers will transfer to the Buyer at Closing good and marketable title to the Purchased AssetsInterests, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentLiens.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, contemplated hereby by each Seller will (i) violate or conflict with any provisions of the articles of incorporation, certificate of formation , bylaws, operating agreement or other governing documents of either of the Sellers, (ii) result in a breach of any of the terms, conditions terms or provisions of, or constitute a violation or default under, or conflict with any Law applicable to such Seller or any judgment, decree, order or award of any court, governmental body or arbitrator to which such Seller is a party or may be bound, or (ii) except as otherwise expressly disclosed in this Agreement or on any of the Schedules hereto, violate, or be in conflict with, or constitute a default under, or result in the termination of, accelerate the performance required by, or cause the acceleration of the maturity of any material liability or obligation, or result in the creation or imposition of any Lien upon the Interests under any note, bond, mortgage, indenture, deed of trust, license, lease, contract, commitment, understanding, or other agreement to which such Seller is a party or to which such Seller may be bound or affected or to which the Interests or may be subject. Neither Seller (nor any of their respective owners, officers, directors, managers or Affiliates) has any claim against the Company, for whatever reason, either as a member, manager, officer, employee or otherwise, and after the Closing, neither the Company nor the Buyer shall have any further obligations owing to the Sellers (nor any of their respective owners, officers, directors, managers or Affiliates), except to the extent expressly provided in this Agreement, or as otherwise agreed to in writing after the Closing between either of the Sellers (or any of their respective owners, officers, directors, managers or Affiliates) and the Company and/or the Buyer.
(d) Each Seller hereby confirms that the ESSI Stock acquired hereunder will be acquired for investment for Seller's Articles own account, not as a nominee or agent, and not with a view to the sale or distribution of Partnership In Commendam or other organizational documentsany part thereof, and that such Seller has no present intention of selling, granting participation in, or otherwise distributing the same. By executing this Agreement, each Seller further represents that such Seller does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third party, with respect to any of the ESSI Stock.
(e) Each Seller understands that the ESSI Stock has not been registered under the 1933 Act or under any statute or administrative regulationapplicable state securities Law, or on the ground that the sale provided for in this Agreement and the issuance of any orderESSI Stock hereunder is exempt from registration under the 1933 Act and that the Buyer's reliance on such exemption is predicated, writin part, injunction, judgment or decree of any court or any governmental authority or of any arbitration awardon such Seller's representations set forth herein.
(f) Seller's booksEach Seller represents that it (and each of its owners) is an "accredited investor" within the meaning of Rule 501 of Regulation D under the 1933 Act and that such Seller (and each of its owners) is experienced in evaluating the merits and risks of investing in companies such as the Buyer, accounts has such knowledge and records areexperience in financial and business matters so as to be capable of evaluating the merits and risks of their investment in ESSI Stock and has the ability to bear the economic risks of their investment. Each Seller further represents that such Seller (and each of its owners) has had access, during the course of the transaction and prior to their acquisition of ESSI Stock hereunder, to the same kind of information that would be provided in a registration statement filed by the Buyer under the 1933 Act and that such Seller (and each of its owners) has had, during the course of the transaction and prior to entering in to this Agreement, the opportunity to ask questions of, and have beenreceive answers from, maintained in Seller's usual, regular the Buyer concerning the current business operations and ordinary manner, in accordance with prudent business practices financial condition of the Buyer and generally accepted accounting practices, and all material transactions to obtain such additional information as the Sellers deemed necessary to verify the accuracy of any information furnished or to which Seller is access was provided to the Sellers (or has been a party are properly reflected thereintheir owners).
(g) Complete and accurate copies Each Seller understands that the ESSI Stock or any interest therein may not be sold, transferred or otherwise disposed of without registration under the audited balance sheets, statements of income and retained earnings, statements of cash flows1933 Act or under any applicable state securities Law or an exemption therefrom, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained that in the Disclosure Scheduleabsence of an effective registration statement covering the ESSI Stock or an available exemption from registration under the 1933 Act and any applicable state securities Law, the ESSI Stock must be held indefinitely. All such financial statements are referred In particular, each Seller is aware that the ESSI Stock may not be sold pursuant to herein collectively as Rule 144 promulgated under the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute 1933 Act unless all of the Permits currently necessary for the ownership and operation conditions of the Businessthat Rule, including but not limited toapplicable holding period, the food manner of sale and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a partyfiling requirements, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)met.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase Agreement (Engineered Support Systems Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendamit has the full right, duly organizedpower, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on it under this Agreement, except to the Business as the Business is now being conducted.limited extent, if any, specifically and expressly set forth in this Agreement;
(b) Except as set forth in neither the Disclosure Schedule, Seller holds good and marketable title to execution nor the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documentsinstrument to which it is a party or by which it, or any of 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.its assets is bound;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(jc) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat received written notice of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges condemnation or employee grievance chargeseminent domain proceedings relating to or affecting the Property and Seller has no knowledge of the same;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(od) Except as set forth on the Disclosure ScheduleSchedule 2 attached hereto, there is no litigation litigation, unsatisfied order or judgment, action, suit, legal proceeding, arbitration or governmental investigation which has been filed or threatened in law writing against Seller or materially affecting the Property or Seller’s ability to consummate the transactions contemplated hereby;
(e) Except as set forth on Schedule 3 attached hereto, Seller has not received written notice of, nor to Seller’s knowledge is there, any uncured violation of any Legal Requirements relating to the use, construction, upkeep, repair, maintenance or operation of the Property;
(f) To Seller’s knowledge: (i) , except as set forth in equitySchedule 4, and there are no proceedings or governmental investigations before any commission Leases or other administrative authoritytenancies for any space in the Real Property; (ii) set forth on Schedule 4 is a true, pendingcorrect and complete list of all documents constituting the Leases; and (iii) except as set forth in Schedule 4, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or there are no defaults existing under said Leases including with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.additional rent;
(pg) There To Seller’s knowledge, (i) , except as set forth in Schedule 5, there are no material claims pending orService Contracts affecting the Real Property; (ii) set forth on Schedule 5 is a true, to correct and complete list of all documents constituting the best of Seller's knowledgeService Contracts; and (iii) except as set forth in Schedule 4, anticipated or threatened against Seller there are no defaults existing under said Service Contracts;
(h) The Property is not covered by a collective bargaining agreement with respect to any employees thereat. Seller has not contributed to any pension fund on behalf of any employees at the quality of or absence of or defects in Seller's products or services.Property;
(qi) To Seller’s knowledge, no party, other than Purchaser, has any option or other right or right of first refusal to purchase the Property. Seller is has not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into any written agreement (other than this Agreement) providing for the sale of the Property to any party which agreement remains in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.effect as of the date hereof; and
(rj) The operating statements delivered to Purchaser are the same statement used by Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years ordinary course of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoeverits business; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.and
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to Crestmark as of the best of Seller's knowledge date hereof and except the Commencement Date as set forth in the Disclosure Schedulefollows:
(a) the execution, delivery and performance of this Agreement, the Bxxx of Sale and the Lease Documents to which Seller is a limited partnership in commendam, party are duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified authorized on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation part of Seller, and upon due execution thereof by the parties thereto, each of such documents shall constitute valid obligations binding upon and enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement as such enforceability may be affected limited by laws relating to applicable bankruptcy, reorganization, insolvency and creditors' other similar laws affecting the rights and remedies of creditors generally and by general principles of equity;
(b) neither the availability execution by Seller of injunctive reliefthis Agreement, specific the Bxxx of Sale or any of the Lease Documents to which Seller is a party, nor the due performance thereof by Seller, will result in any breach of, or constitute a default under, or violation of, Seller's certificate of formation, limited liability company agreement, or any material agreement to which Seller is a party or by which Seller is bound and other equitable remedies). Except as contemplated under Section 6.1 hereofthat relates to the Equipment, there is no nor will any of the same violate any material law, rule, regulation or ordinance order by which Seller is bound and that relates to the Equipment;
(c) Seller is duly formed, validly existing and in good standing in its state of formation and is duly qualified as a foreign limited liability company in each other jurisdiction where the Equipment is located;
(d) Seller has and is transferring to Crestmark good, valid and marketable title to the Equipment free and clear of all liens, encumbrances and claims of any kind or description other than Permitted Liens (for purposes of this Section 5, “Permitted Liens” means (i) any liens, encumbrances or claims for taxes not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; (ii) any liens created by the Lease Documents (other than the Project Documents (as defined below)); (iii) any liens, encumbrances or claims arising in the ordinary course of business by operation of law (including mechanics’ and materialmen’s liens) with respect to a liability that is not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; and (iv) zoning, planning and other similar encumbrances affecting the Equipment which do not in any case materially detract from the value of the Equipment;
(e) the agreements listed on Exhibit #3 constitute a true, accurate and complete list of all material contracts with respect to the Equipment (as supplemented from time to time in connection with the Lease Agreement, and as may be amended, amended and restated, modified or supplemented from time to time, and including any replacement or supplementary agreements thereof or thereto, the “Project Documents”);
(f) each Project Document to which Seller is a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, and has not been amended or modified except as noted on Exhibit #3, and with respect to each such agreement, Seller is not, and to Seller’s knowledge, no other party thereto is, in default thereunder;
(g) each Project Document to which Seller is not a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, has not been amended or modified and, to the knowledge of Seller, no party to any of such agreements is in default thereunder;
(h) Seller has provided to Crestmark true, correct and complete copies of each Project Document and has received all third party consents and approvals necessary to permit the collateral assignment to Crestmark contemplated by the Lease Documents, as well as the potential direct assignment to Crestmark upon the election of the Return Option or following the occurrence and during the continuance of a Default (each as defined in the Lease Agreement) at the end of the Lease Term;
(i) there are no warranties or indemnities applicable to the Equipment that were provided by any manufacturer, supplier or installer of any of the Equipment other than those included in the Project Documents and those separate warranties listed on Exhibit #4 hereto (all such warranties and indemnities, the “Warranties”);
(j) the installation and operation of the Equipment and development, construction and operation of the system comprising the Equipment is and has been in material compliance with all Applicable Laws, including environmental laws, and all material franchise, license, permit, approval, notification, certification, registration, authorization and qualification required by any governmental body authority (“Governmental Approvals”) required as of the effective date of the Lease Agreement to develop, construct and operate the system comprising the Equipment have been duly obtained, are in full force and effect, are final and all periods to administratively or agency prohibiting Sellerjudicially appeal such Governmental Approvals have expired;
(k) Lessee is either not subject to or is exempt from regulation (i) as a "public utility" or a "holding company" under the Federal Power Act ("FPA") and the Public Utility Holding Company Act ("PUHCA") and FERC's executionregulations thereunder, and (ii) as a "public utility," "electric utility," "electric corporation," or a "holding company" or similar terms under applicable laws or regulations of each state where the Equipment is located, and, solely as the result of the execution and delivery and of the Lease Documents or the consummation or performance of the transactions contemplated by this Agreementthereby, Lessor will not become subject to regulation under any of the foregoing laws or regulations. The sale transaction contemplated by this Agreement Lessee is being made in connection with not subject to regulation under the winding-up Investment Company Act of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.1940; and
(dA) No consentSeller has timely filed or caused to be filed all tax returns and reports required to have been filed by it and has paid or caused to be paid all taxes, authorizationassessments and governmental charges assessed or imposed that are required to have been paid by it, order and (B) Seller has not applied to the Internal Revenue Service for a private letter ruling with respect to the Equipment, the Project Documents or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documentsthe Lease Agreement.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. (a) Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Buyer that Seller is a limited partnership in commendamcorporation, duly organizedformed, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Delaware; Seller has full partnership right, power and authority to enter into and perform under (x) this Agreement and (y) all to consummate the transactions contemplated hereby; no consent is necessary from any party in order for Seller to enter into and perform this Agreement; the person signing this Agreement and any of the other documents on behalf of Seller has full power and instruments authority to be bind Seller; and when executed by Seller pursuant to Seller, this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, shall be binding and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms terms, and upon Seller’s execution of any other documents contemplated herein, they shall be binding and enforceable against Seller in accordance with their terms.
(except b) To Seller’s knowledge, Seller has not received any written notice from any city, county, state or other government authority stating that the Property is in material violation of the laws, rules or ordinances applicable to the extent that enforcement may be affected by laws relating Property, which violation has not been remedied, and to bankruptcySeller’s knowledge there are no such uncured material violations.
(c) To Seller’s knowledge, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance Seller has not received written notice of any governmental body actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, pending or threatened, against Seller or the Property, or any portion or portions thereof, in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency prohibiting Seller's executionor other governmental instrumentality, delivery and performance including, without limitation, any condemnation or eminent domain proceeding, that would materially affect the ownership, development, use, value or operation of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Property, and to Seller's Articles of Partnership In Commendam dated as of May 1’s knowledge there are no such actions, 1980suits or proceedings.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person Seller is required for Seller's execution and delivery not a “foreign person” which would subject Buyer to the withholding tax provisions of this Agreement and Seller's Ancillary Documents and the consummation by Seller Section 1445 of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsInternal Revenue Code of 1986, as amended.
(e) Neither Seller is in compliance with the execution requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25, 2001) (the “Order”) and delivery of this Agreement other similar requirements contained in the rules and Seller's Ancillary Documents by Seller, nor the consummation by Seller regulations of the transactions herein contemplatedOffice of Foreign Asset Control, will conflict Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”). Seller is and has always been in compliance with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”). Seller:
(i) is not listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or result in a breach of terrorist organizations maintained pursuant to any of the termsrules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”);
(ii) has not been determined by competent authority to be subject to the prohibitions contained in the Orders; and
(iii) is not owned or controlled by, conditions nor acts for or provisions of Seller's Articles of Partnership In Commendam on behalf of, any person or other organizational documents, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court entity on the Lists or any governmental other person or entity that has been determined by competent authority or of any arbitration awardto be subject to the prohibitions contained in the Orders.
(f) To Seller's books’s knowledge, accounts except for any such matters which may have been previously cured by Seller and records areexcept as otherwise disclosed in any environmental reports obtained by Buyer, or delivered or made available to Buyer during the Due Diligence Period, (i) Seller has not received written notice from any governmental entity of any violation of any Environmental Laws related to the Property, or of the presence or release of Hazardous Materials on, in, under or from the Property, and have been(ii) there are no material violations of any Environmental Laws related to the Property. As used herein, maintained the term “Environmental Laws” includes without limitation, all statutes, ordinances, orders, rules and regulations of all federal, state or local governmental agencies relating to the use, generation, manufacture, installation, release, discharge, storage or disposal of Hazardous Materials as they relate to the Property. As used herein, the term “Hazardous Materials” includes petroleum, petroleum products, asbestos, asbestos containing materials, polychlorinated biphenyls, radioactive materials, radon gas or any chemical, material or substance defined as or included in Seller's usualthe definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste” or “toxic substances,” or words of similar import, regular under any Environmental Laws, including without limitation the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.), the Resource Conservation and ordinary mannerRecovery Act, in accordance with prudent business practices as amended (42 U.S.C. § 6901 et seq.), the Comprehensive Environmental Response, Compensation and generally accepted accounting practicesLiability Act of 1980, as amended (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801 et seq.), the Superfund Amendments and Reauthorization Act, as amended (42 U.S.C. § 9601 et seq.), and all material transactions to which Seller is or has been a party are properly reflected thereinthe Toxic Substances Control Act, as amended (15 U.S.C. § 2601 et seq.).
(g) Complete Other than the Leaseback Lease and accurate copies of the audited balance sheetsSPT Lease (as defined below), statements of income there are no leases, rental agreements or third-party occupancy agreements affecting the Real Property, or any portion thereof. Other than Seller pursuant to the Leaseback Lease and retained earningsSPT Tenant pursuant to the SPT Lease, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereofClosing Date, and no person or party will have the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses right to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies occupy any portion of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred Real Property pursuant to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession license agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andnot granted to any other person a right or option to purchase the Property, and to the best of Seller's ’s knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If have any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at right or prior option to Closing.
(m) Except as disclosed on purchase the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure ScheduleProperty. As used in this Agreementherein the term “SPT Tenant” means SPT Microtechnologies, "Environmental Laws" means all federalUSA, state and local statutesInc., regulationsa Delaware corporation, ordinancesas successor to SPTS Technologies, rulesInc., regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.a
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to Buyer the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule following matters which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to shall be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete true and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereofhereof and as of the Closing Date. Buyer and Seller each specifically acknowledge and agree that all references in this Agreement, in any of the exhibits attached hereto and in any document, certificate or statement to be delivered by Seller to Buyer hereunder to the results phrases "to Seller's actual knowledge," or "known to Seller" (whether used in the phrase "to the actual knowledge of operations Seller," "actually known to Seller," "Seller's knowledge," or in similar or other contexts)
(1) shall mean the actual (not constructive or imputed) personal knowledge of Tom Masles and Joseph Eandi (collectively, the "Seller's Personnel"); (0) xxxxl in xx xxxx xxxx or refer to the actual or constructive knowledge of any other employee, partner, member, officer, director, agent, trustee or member, partner, representative or employee of a partner, member, officer, director, agent or other representative of Seller for or any investment advisor, attorney, management company, contractor or representative of Seller (together with Seller's Personnel, the period covered by said statements, "Seller Representatives"); and (3) shall in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all no event or circumstance impose upon Seller or any of the Permits currently necessary for Seller Representatives any duty or obligation to verify, inquire or make any independent inquiry or investigation of any such representation, warranty or statement, or to otherwise investigate the ownership facts or circumstances relating or otherwise pertinent thereto. Buyer further acknowledges and operation agrees that none of the BusinessSeller Representatives shall be personally liable, including but not limited toor otherwise have any personal liability, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance under or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation this Agreement, including without limitation, in connection with any of the Business representations, warranties or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change statements made in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor disputeconnection with, or any material adverse change inpursuant to, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contractsthis Agreement. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true representations and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required warranties set forth in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after survive the Closing Date.
for a period of twelve (n12) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationmonths, labor strikeand, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser if Buyer shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring made a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened claim against Seller with respect to any such representation or warranty during such twelve (12) month period, shall survive thereafter until the quality resolution of or absence of or defects in Seller's products or servicessuch claim.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Participation and Put Option Agreement (Inktomi Corp)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(ai) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds owns good and marketable fee simple title to the Purchased AssetsProperty, free and clear no party has the right or option to acquire all or any portion of all mortgagesthe Property, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, Purchaser pursuant to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.terms of this Agreement,
(cii) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(diii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iv) there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property,
(v) Seller has no knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(vi) Seller has no knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vii) there are no service contracts, equipment leases and/or maintenance agreements affecting the Property, other than Contracts, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below,
(viii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(ix) there are and will be no parties in possession of, without limitation: employment or claiming any possession to, any portion of the Property, other than tenants under Leases, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below, as reflected on the rent roll to be provided by Seller to Purchaser at Closing (the “Rent Roll”),
(x) at Closing there will be no unpaid bills or claims in connection with any construction or repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(xi) the Rent Roll shall be true, correct and employment-related agreements; covenants not complete in all material respects and no concessions, discounts or other periods of free or discounted rent shall have been given other than those reflected on such Rent Roll,
(xii) all information delivered by Seller to compete; loan agreementsPurchaser pursuant to Section 4.1 hereof, notesis true, correct and complete in all material respects,
(xiii) Seller has no knowledge, and security agreements (other than noteshas received no notice, loan agreements and related security documents that are being satisfied regarding any environmental contamination on, at or prior adjacent to Closing); sales representativethe Property,
(xiv) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, distribution, franchise, advertising and similar agreements; concession except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or occupancy agreements; leases and subleases insurer,
(xv) there are no employment agreements of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xvi) the Improvements will be, and as of the Closing Date shall have been, constructed strictly in full force accordance with the Plans and binding upon Specifications, with no defects in the parties thereto. No default by Seller has occurred thereunder anddrainage systems, foundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property,
(xvii) the Improvements, following completion, shall be free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xviii) to the best of Seller's ’s knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions underground storage tanks located on or referral fees under the Property, there are no conditions on, at or relating to the Business currently outstanding, nor will there be any such commissions Property which are in non-compliance with “Environmental Requirements” (as defined below) or referral fees outstanding, on or after otherwise adversely affect the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equityProperty, and there are no proceedings “Hazardous Materials” (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xix) on or before Closing, Seller shall obtain all necessary certificates, licenses and other approvals, governmental investigations before and otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which, as of the Closing, shall be in full force and effect and not subject to revocation, suspension, forfeiture or modification,
(xx) the Property is legally compliant and conforms with all applicable zoning laws, rules and regulations,
(xxi) Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any commission enabling legislation or other administrative authorityExecutive Orders or regulations in respect thereof (the Executive Order and such other rules, pendingregulations, orlegislation, or orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the best Executive Order and/or on any other list of Seller's knowledge, threatened, against Seller terrorists or its Affiliatesterrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders; or (c) is owned or controlled by, or with respect acts for or on behalf of, any person on the OFAC Lists or any other person who has been determined by competent authority to be subject to the consummation prohibitions contained in the Foreign Asset Orders, 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,
(xxii) there are no Leases, Tower Leases or Billboard Leases affecting the Property other than those approved in writing by Purchaser, (xxiii) the Plans and Specifications include the unit mix set forth on Exhibit “K” attached hereto,
(xxiv) Seller has obtained all building permits and other governmental approvals as may be necessary to commence and complete construction of the transaction contemplated herebyImprovements, and further has obtained all necessary financing to enable Seller to complete construction of the Improvements; and
(xxv) The Property includes an additional 82,280 gross square feet of self-storage, comprising 3 buildings, which are site plan approved for future expansion, which is attached hereto as Exhibit “N”. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser so as to be effective and deemed given as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Purchased Assets (whether used by Purchaser after Property, relating to pollution, the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, protection or regulation ofof human health, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnelnatural resources, or the Business are subject environment, or to which itthe emission, itselfdischarge, is subject)release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, lawsambient air, statutes and regulations relating to equal employment opportunitiessurface water, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleground water or land or soil).
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser thatBuyer as follows, to all of which shall survive the best Closing for a period of Seller's knowledge and except as set forth in the Disclosure Schedulesix (6) months:
(a) Seller is a California limited partnership in commendam, liability company duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaCalifornia. Seller has all necessary power Subject to the disclosures and authority to conduct the Business as the Business is now being conducted.
(b) Except as other provisions set forth in the Disclosure ScheduleSection 6.5 below, Seller holds good and marketable title to has the Purchased Assetsfull right, free and clear of all mortgagescapacity, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) carry out the terms of this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents")Agreement. This Agreement has beenbeen duly authorized and executed by Seller and the person(s) signing this Agreement on behalf of Seller, and Seller's Ancillary Documents will be, duly authorized upon delivery to and execution by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes Buyer shall be a valid and legally binding obligation agreement of Seller.
(b) Seller is not bankrupt or insolvent under any applicable federal or state standard, has not filed for protection or relief under any applicable bankruptcy or creditor protection statute and has not been threatened by creditors with an involuntary application of any applicable bankruptcy or creditor protection statute.
(c) To the current actual knowledge of Seller, enforceable against Seller in accordance with its terms (except subject to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance disclosures and other equitable remedies). Except as contemplated under provisions set forth in Section 6.1 hereof6.5 below, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplatedcontemplated hereby, will not conflict with or result in constitute a breach of default under any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or any other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to by which Seller is a party, are in full force and binding upon the parties theretobound. No default consents or waivers of or by any third party are necessary to permit the consummation by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in purchase and sale transaction contemplated by this Section 4.3(k)Agreement.
(ld) To the current actual knowledge of Seller, Seller is not a party toin compliance with the requirements of Executive Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation, or bound orders are collectively called the “Orders”). To the extent of Seller’s actual knowledge, Seller is not: (i) listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”); (2) a person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (3) owned or controlled by, or acts for or on behalf of, any unexpired, undischarged person or unsatisfied written entity on the Lists or oral contract, agreement, indenture, mortgage, debenture, note any other person or other instrument under the terms of which performance entity who has been determined by Seller according competent authority to be subject to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to prohibitions contained in the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingOrders.
(me) Except as disclosed on the Disclosure Schedule, there There are no commissions leases, tenancies or referral fees third party occupancy agreements relating to or affecting the Business currently outstandingProperty, nor will there and except for Seller and except as may be set forth in any such commissions documents recorded against the Real Property and subject to the disclosures set forth in Section 6.5 below, no party has any rights to occupy, use or referral fees outstanding, on or after possess the Closing DateProperty.
(nf) With respect to employees Seller has not received any written notice of Seller:
(i) there is no pending any violation of any law, ordinance, regulation, order or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, requirement applicable to the best Property which has not been cured, and Seller is unaware of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Sellersuch uncured violation.
(vg) The Disclosure Schedule contains a true and complete list of all employees who are employed by Subject to the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as disclosures set forth on the Disclosure Schedulein Section 6.5 below, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, similar proceeding pending, or, or to the best of Seller's ’s knowledge, threatened, which relates to the Property. For purposes of Seller’s representations and warranties above, the phrase “to the current actual knowledge of Seller,” shall mean the current actual knowledge of Xxxxx Xxxx and Xxxx Xxxxxx as of the date of execution of this Agreement by Seller, without any investigation or duty of inquiry, and without any knowledge of any other person being imputed to Xxxxx Xxxx or Xxxx Xxxxxx. Xxxxx Xxxx is the manager of Seller and also has a direct or indirect ownership interest in the Property. Xxxx Xxxxxx is an officer of the property manager that manages the Real Property and also has a direct or indirect ownership interest in the Property. Seller, Xxxxx Xxxx and Xxxx Xxxxxx shall not be charged with constructive, inquiry, imputed or deemed knowledge. In the event of any breach of any representation or warranty of Seller set forth herein, Buyer agrees that neither Xxxxx Xxxx nor Xxxx Xxxxxx shall be personally liable for any damages, losses, liabilities, claims, costs or expenses suffered or incurred by Buyer in connection with such breach of such representation or warranty. The preceding notwithstanding, Seller shall promptly advise Buyer if Seller acquires any information following the Effective Date which would make any of the representations and warranties set forth in Section 6.3 above untrue; provided that it shall not be a breach of such representation or warranty if the new information, event or condition which renders the representation or warranty untrue was not known by Seller as of the Effective Date. If Seller or Buyer acquires any new information following the Effective Date which would (i) make any of the representations or warranties contained in Section 6.3 (a)—(d) untrue in any material respect, then, as Buyer’s sole remedy, Buyer shall have the right to terminate this Agreement by delivery of written notice to Seller and, in the event of such termination, all rights and obligations under this Agreement (except those that expressly survive the termination of this Agreement) shall cease, the Deposit shall be promptly returned to Buyer and Seller shall reimburse Buyer for its out-of-pocket costs incurred in connection with Buyer’s due diligence review and investigation of the Property in an amount not in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) together with interest thereon at the rate of ten percent (10%) per annum from the date of demand for payment to the date of payment, if payment is not made within ten (10) days after demand therefore, which obligation shall survive termination, or (ii) make any of the representations or warranties contained in Section 6.3 (e)—(g) untrue in any material respect, then, as Buyer’s sole remedy, Buyer shall have the right to terminate this Agreement by delivery of written notice to Seller and, in the event of such termination, all rights and obligations under this Agreement (except those that expressly survive the termination of this Agreement) shall cease and the Deposit shall be promptly returned to Buyer; provided, however, if the new information causing any representation or warranty to be untrue is based on or caused by an act(s) or omission(s) of Buyer or any of the agents, employees, officers, directors, affiliates, contractors, consultants or other representatives of Buyer, then Buyer shall not have the right to terminate this Agreement or to receive the return of any portion of Buyer’s Deposit as provided in this Section based on such representation or warranty that becomes untrue. If, prior to the Closing hereunder, Buyer becomes aware of any facts that make any of the representations or warranties set forth in Section 6.3 untrue, but Buyer nevertheless elects to proceed with the Closing hereunder, then Buyer shall be deemed to have waived any claim against Seller based on such untrue representation or its Affiliateswarranty. The provisions of the immediately preceding sentence shall survive the Closing. The representations and warranties of Seller set forth in this Section 6.3 shall survive the Closing for a period of six (6) months, and Seller shall only be liable to Buyer hereunder for a breach of representation or warranty made by it herein with respect to which a claim is made by Buyer against such Seller before the consummation end of the transaction contemplated hereby, or the use of the Purchased Assets such six (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder6) month period.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents Sellers hereby jointly and warrants severally represent and warrant to Purchaser thatBuyer as follows, to excepting from such representations and warranties the best of Seller's knowledge and except as disclosures set forth in the Disclosure Schedulecorresponding Schedules to the Merger Agreement:
(aA) Seller is a limited partnership in commendamSellers have the full legal right, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents")Agreement. This Agreement has been, been duly and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly validly executed and delivered by general partners of Seller so authorized. This Agreement Sellers, and, assuming the due authorization, execution and delivery hereof by Buyer, constitutes a valid and legally binding obligation agreement of SellerSellers, enforceable against Seller Sellers in accordance with its terms terms, subject to (except to the extent that enforcement may be affected by laws relating to i) bankruptcy, insolvency, reorganization, insolvency and moratorium or other similar laws affecting or relating to the enforcement of creditors' rights generally and by (ii) such principles of equity as may effect the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(dB) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's The execution and delivery of this Agreement and Seller's Ancillary Documents by Sellers do not, and the consummation by Seller Sellers of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Sellerhereby will not, nor the consummation by Seller of the transactions herein contemplated, will conflict with violate or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any lien, encumbrance, mortgage, pledge, security interest, option, right of first refusal, reservation, restriction or other encumbrance or defect in title upon the Propertyunder any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsof, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits any federal, state, local or foreign statutes, laws, ordinances, proclamations, code, regulations, licenses, permits, authorizations, approvals, consents, legal doctrine, published requirements, orders, decrees, judgments, injunctions and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance rules of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Businessgovernmental authority, including, without limitation: employment , those covering environmental, taxes, energy, safety, health, transportation, bribery, recordkeeping, zoning, discrimination, antitrust and employment-related agreements; covenants not wage and hour matters, in each case as amended and in effect from time to compete; loan agreementstime, notesapplicable to Sellers or any of the Property ("LAWS"), and security agreements or (other than notesii) any agreement, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representativenote, distributionbond, mortgage, indenture, deed of trust, license, franchise, advertising and similar agreements; concession permit, concession, lease or occupancy agreements; leases and subleases other instrument, obligation or agreement of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence Property may be bound or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given affected.
(or will give, during the Inspection PeriodC) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser Except as required under Section 1.2 hereofthe Hart-Scott-Rodino Antitrust Improvements Act of 1976, against lossas amended ("H-S-X"), cost xx xxxxxxxxion, filing or liability under registration with, or notice to, or authorization, consent or approval of, any contract, lease governmental authority or agreement not disclosed to Producer as required in third party is necessary for the execution and delivery of this Section 4.3(k)Agreement by Sellers or the consummation by Sellers of the transactions contemplated hereby.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(oD) Except as set forth on SCHEDULE 4.12 of the Disclosure ScheduleMerger Agreement, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, as to the best of Seller's knowledgeProperty, threatened, against Seller or its Affiliates, or (i) Sellers have complied with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are Property is in compliance with all Environmental Laws (as herein after defined), including, without limitation, Environmental Laws relating to air, water, land and the generation, storage, use, handling, transportation, treatment or disposal of Hazardous Substances; (ii) Sellers have obtained and complied with all necessary permits and other approvals necessary to treat, transport, store, dispose of and otherwise handle Hazardous Substances on or with respect to the Property; (iii) there have been no "releases" or threats of "releases" (as defined in any Environmental Permits Laws) at, from, in or on the Property except as permitted by Environmental Laws; (as herein defined). A copy iv) there is no on-site or off-site location to which Sellers have transported or disposed of Hazardous Substances or arranged for the transportation or disposal Hazardous Substances which is the subject of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state, local or foreign enforcement action or any other investigation which could lead to any claim against Sellers, Buyer or PalEx for any clean-up cost, remedial work, damage to natural resources or personal injury, including, but not limited to, any claim under (A) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (B) the Resource Conservation and Recovery Act, (C) the Hazardous Materials Transportation Act or (D) comparable state and local statutes, statutes and regulations, ordinances, rules, regulations ; and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination (v) Sellers have no known contingent liability in connection with any release of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsHazardous Substance into the environment from the Property.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents Sellers jointly and warrants severally represent and warrant the following to Purchaser that, to Purchasers as of the best of Seller's knowledge and except as set forth in the Disclosure ScheduleClosing Date:
(a) Sellers’ Capacity; Approvals and Consents
(1) That they have legal capacity, legal standing and powers to make this Offer and to consummate the purchase and sale herein contemplated and that, except as provided in Sections 1.03, 2.02(a)(7) and 7.10, no consent or authorization from any other individual, entity or Governmental Authority is required other than the Antitrust Approval. There is no legal, judicial or contractual restriction that may affect the disposition of their assets, in general, or of their own Shares. Sellers’ delivery and acceptance of this Offer, as appropriate, has been duly authorized by their respective spouses. This transaction is duly performed and executed by each Seller, and it constitutes each Seller’s valid and binding obligation, which may be enforced against each Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedper its terms.
(b2) Except Sellers have full powers and authority as set forth in are necessary to present, agree to and execute this Offer and the Disclosure Schedule, Seller holds good remaining offers and marketable title documents related hereto; to undertake due fulfilment of the Purchased Assets, free obligations assumed by Sellers hereunder and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or under the other encumbrances of any kind or nature other than offers and documents related hereto; and to consummate the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquenttransactions contemplated herein.
(c3) Seller has full partnership power Sellers’ delivery, acceptance and authority to enter into compliance of this Offer and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
document related thereto does not: (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respectsinfringe any provision of applicable regulations, laws or by-laws to which Sellers, the Company or the Shares may be subject; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Businessinfringe any resolution, including but not limited todecision or judgment issued by any judicial or Governmental Authority that may be applicable to Sellers, the food Company or the Shares, or any instrument or agreement to which the Company or Sellers are a party; and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred result in the due observance creation or performance the imposition of Liens or claims of any requirements or condition nature on the Company and/or on any of the assets and/or Shares of the Company.
(4) Sellers have good, full legal and exclusive title to all the Shares. Furthermore, Sellers represent and warrant both that the gift arising from the offer of gratuitous donation made by their parents by means of deed three hundred and sixty-two (362) evidencing each Seller’s acceptance of such offer sent to the Company on July 7th, 2010 and the communication sent to the Company by the donors and donees, pursuant to article 215 of the Argentine Corporate Law –all of which is evidenced by two (2) minutes of the board of directors, dated July 7th, 2010–, attested to by Notary Public from this city, Xxxxxxxxx Xxxxxxx Alvariñas Canton, on June 23rd, 2010, is valid and binding, and has been performed pursuant to the provisions of the applicable law, and also that there are no other heirs of such donors who have legal right and/or may affect the full right of ownership of Sellers’ Shares;
(5) Sellers are free of any Permit which has not been heretofore correctedLiens, temporary restraining orders, court orders or any other claims or actions that may restrain them from freely disposing of the Shares in whole or in part; and
(iv6) Sellers are not in insolvency proceedings and they have not filed for reorganization nor bankruptcy proceedings, and no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed pending petitions in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewithbankruptcy have been filed against them.
(j7) Seller has Sellers are not suffered or been threatened vested with immunity and/or any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller special situation that prevent them from being parties to legal proceedings and any of its customers, suppliers or key employeesbecoming subject to a judgment.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Stock Purchase Agreement
Seller’s Representations and Warranties. It is expressly understood and agreed that all liability of Seller for breach of the representations and warranties contained in this Section 8 shall terminate upon the earlier of (a) the Closing Date, or (b) the date upon which this Agreement terminates. Except as set forth on Schedule 8.1, Seller represents and warrants to Purchaser that, to Buyer that as of the best date of Seller's knowledge and except as set forth in the Disclosure Schedulethis Agreement:
(a) Seller is a limited partnership in commendamcorporation, duly organizedincorporated, validly existing and in good standing, standing under the laws of the State of Louisiana. Maryland, and to the extent required to be so qualified, is qualified to transact business in the State of California;
(b) Seller has all necessary the full power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Scheduleexecute, Seller holds good deliver and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionsperform its obligations under this Agreement, and all items subject to receipt of Equipment, Inventory and other personal property have been fully paid forthe Maryland Law Vote, to consummate the extent that normal business practice permits, except those items identified on sale of the Disclosure Schedule which are subject Target Properties to installment payments or leases and with respect to which there are no installments due which are delinquent.Buyer as contemplated by this Agreement;
(c) Seller has full partnership power and authority to enter into and perform under (x) this This Agreement and (y) all agreements, instruments and documents and instruments herein provided to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenare, and Seller's Ancillary Documents as of the Closing will be, duly authorized by all necessary partnership action(s)authorized, and duly executed and delivered by general partners of Seller so authorized. This by, and, assuming this Agreement constitutes is a legal, valid and legally binding obligation of Buyer, are and will be binding upon and enforceable against, Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement as such enforceability may be affected limited by laws relating to bankruptcy, reorganizationinsolvency, insolvency moratorium, and similar laws affecting creditors' ’ rights generally and by the availability general principles of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.equity;
(d) The Board Approval has been duly obtained. No takeover laws or statutes (including Subtitles 6 and 7 of Title 3 of the MGCL or any other “business combination”, “control share acquisition”, “fair price”, “moratorium” or similar anti-takeover laws) apply to this Agreement, the sale of the Target Properties to Buyer or the other agreements and transactions contemplated hereby and in connection herewith, including under any other transactions and agreements. No other consent, authorizationwaiver, order or approval ofapproval, or filing or registration with, any governmental authority authorization or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and corporate proceedings on the consummation by Seller part of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither , its Subsidiaries or any other Person are necessary to authorize the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor or to consummate the consummation by Seller sale of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements Target Properties (other than notesthan, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction sale of the Target Properties, the receipt of the Maryland Law Vote). The Board Approval remains unmodified and in full force and effect;
(e) The Maryland Law Vote is the only vote of holders of Shares that is required by Maryland law to approve and adopt the transfer of the Target Properties to Buyer pursuant to this Agreement and the transactions contemplated herebyhereby and in connection herewith, including under any other transactions and agreements. Seller has delivered to Buyer true, correct and complete copies of all agreements entered into by Seller and/or its Subsidiaries relating to the transactions contemplated in connection herewith, including under any other transactions and agreements, and such agreements have not been amended in a manner adverse to Buyer. Except for the Maryland Law Vote, all consents and approvals of Seller’s Subsidiaries, and holders of equity interests therein, necessary for the consummation of the transactions contemplated hereby and in connection herewith, including under any other transactions and agreements, have been received and remain in full force and effect;
(f) The Seller Board and Independent Directors Committee have received the written opinion of Stifel on or prior to the date of this Agreement, to the effect that, as of the date of such opinion and subject to the factors, qualifications and assumptions set forth in such opinion, the consideration to be paid to the stockholders of Seller (in their capacity as such) who are not affiliated stockholders (as defined therein), in connection with the transactions is fair to the stockholders of Seller from a financial point of view;
(g) Neither Seller nor any of Seller’s Subsidiaries has received written notice from any Governmental Agency that eminent domain proceedings for the condemnation of all or any portion of the Target Properties are pending and, to Seller’s Knowledge, no such proceedings are pending or threatened;
(h) Neither Seller nor any of Seller’s Subsidiaries has received written notice of, and Seller has no knowledge of, any threatened in writing or pending governmental action with respect to the Target Properties, including any special assessments, rezoning or moratorium with respect to the Target Properties;
(i) Neither the execution or delivery of this Agreement and the instruments to be executed or delivered by Seller pursuant to this Agreement nor the consummation of the transactions contemplated herein (i) conflict with, or result in a material breach of, or constitute a material default under, any written agreement to which Seller or any Property Owner (or Target Property) is a party or by which Seller or any Property Owner is bound, including any organizational or corporate documents of Seller and Seller’s Subsidiaries or any Property Owner and any documents evidencing any Debt or Other Obligations, or (ii) to Seller’s Knowledge, violate any judgment, order, injunction, decree, regulation, or ruling of any court of Governmental Agency;
(j) Neither Seller nor any of Seller’s Subsidiaries has: (i) made a general assignment for the use benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by Seller’s creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of Seller’s assets; (iv) suffered the attachment or other judicial seizure of all or substantially all of Seller’s assets; or (v) admitted in writing its inability to pay its debts as they become due;
(k) As of the Purchased Assets date hereof, none of Seller or any of its Subsidiaries has received written notice of, and Seller has no Knowledge of, any pending or threatened, investigations, actions, suits, proceedings or claims, whether at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, agency or instrumentality, domestic or foreign, that are reasonably likely to adversely affect the ability to consummate the transactions contemplated hereby or to materially adversely affect Seller or the Target Properties (whether used by Purchaser it being understood for purposes of this Section 8.1(k) that which is reasonably likely to materially adversely affect Seller or the Target Properties would not necessarily be reasonably likely to have a Material Adverse Effect), except as set forth on Exhibit J;
(l) There are no written agreements that Seller or any Property Owner has entered into with any leasing agent or broker in connection with the leasing of the Target Properties, except for Lease and Related Costs;
(m) None of Seller, any Subsidiary nor, to Seller’s Knowledge, any other party to any material agreement or Contract relating to or affecting the Target Properties, which agreement will be binding upon Buyer or the Target Properties after the Closing Closing, is in material default under such agreement or by Seller prior thereto)Contract;
(n) To Seller’s Knowledge, there are no liens, encumbrances, or any other defect in title to the Target Properties which would restrict is not shown on the PTR;
(o) Seller has no Knowledge, and has not received, nor has any Subsidiary received, any notice from a Governmental Agency, of any violation of Environmental Laws related to the Target Properties or interfere with Seller's ability to perform its obligations hereunder.the presence or release of Hazardous Materials on or from the Target Properties, except as identified by the environmental reports prepared by EMG;
(p) The outstanding Debt and Other Obligations are itemized on Exhibit B, and all of the documents evidencing, securing or otherwise affecting the Assumed Debt, if any, are as set forth on Exhibit B. There are no material claims pending orother documents, to instruments or agreements evidencing, securing or otherwise affecting the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.Assumed Debt except as set forth on Exhibit B;
(q) Seller is not a party to“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, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.as subsequently amended; and
(r) Seller is not in violation ofof any applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act (the “Patriot Act”), and to Seller’s Knowledge, other authorizing statutes, executive orders and regulations administered by OFAC, and related Securities and Exchange Commission, SRO or other agency rules and regulations, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance. Neither (i) Seller, any Affiliate of Seller nor any Person controlled by Seller; nor (ii) to the best of knowledge of Seller, after making due inquiry, any Person who owns a controlling interest in or otherwise controls Seller; nor (iii) to the best of knowledge of Seller, after making due inquiry if Seller is a privately held entity, any Person otherwise having a direct or indirect beneficial interest (other than with respect to an interest in a publicly traded entity) in Seller; nor (iv) any Person for whom Seller is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or delinquent in respect toentity named on an OFAC List, any decreenor is a prohibited country, order or arbitration award or lawterritory, statutePerson, organization, or regulation of, entity under any economic sanctions program administered or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedulemaintained by OFAC.
(s) SellerAs of the date hereof, the Purchased Assets List of Tenant Leases set forth on Exhibit L-1 attached hereto constitutes a complete and accurate list, in all material respects, of all Tenant Leases; copies of all Tenant Leases made available to Buyer are true, correct and complete in all material respects; neither Seller nor any Subsidiary has given any written notice to any Tenant of a material default under its Tenant Lease which default has not been cured prior to the Business date hereof; the List of Security Deposits as set forth on Exhibit L-2 attached hereto lists all security deposits made by Tenants which have not been applied in accordance with the terms of the applicable Tenant Lease, including an indication as to which of such security deposits are in compliance with the form of letters of credit or otherwise not in the form of cash. The Rent Roll was prepared in the ordinary course of Seller’s business and to Seller’s Knowledge, is accurate and complete in all Environmental Laws material respects.
(as herein definedt) and any Environmental Permits (as herein defined). A copy As of any noticethe date hereof, citation, inquiry or complaint which Seller has not received in the past three years of any alleged written notice from any Governmental Agency respecting any violation of any Environmental Law applicable governmental law, ordinance, rule or Environmental Permit is attached regulation applicable to Seller, any Subsidiary, any Target Property, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule, or regulation, which (i) has not been either cured or removed (or shall be cured or removed prior to the Disclosure Schedule. Closing) or otherwise disclosed to Buyer and (ii) materially and adversely affects the value of the Target Property.
(u) To Seller’s Knowledge, Seller possesses has provided Buyer with copies of all Environmental Permits Contracts affecting the Target Properties that will remain in effect following the Closing, and such copies are true, correct and complete.
(v) All Taxes and other assessments which are required for due and owing with respect to any Target Properties are paid current to date, and no such Taxes or other assessments are delinquent.
(w) With respect to the operation Ground Leased Target Property, Seller represents and warrants as follows: Seller has provided to Buyer a true, correct and complete copy of the Businessground lease and all amendments and supplements thereto. Neither Seller nor the applicable Subsidiary has given or received any written notice of default under the ground lease documents, and to Seller’s Knowledge, neither party is in compliance default under the ground lease documents nor is there any event, with the provisions giving of all such Environmental Permits. Copies notice and passage of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common lawany applicable grace or cure periods, which pertain could give rise to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required a default under or are issued pursuant to Environmental Lawsthe ground lease documents.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mission West Properties Inc)
Seller’s Representations and Warranties. Seller hereby warrants that:
(a) There are no outstanding notices of taking by condemnation. Seller agrees to assign, at settlement, all right to condemnation money to Buyer by reason of any taking or notice thereof after execution of this Agreement and will include such clause in a deed or other separate instrument and will execute any other documents necessary to carry out the foregoing.
(b) There are no assessments for public services made against the premises.
(c) The Seller has no knowledge of any notice by any governmental or public authority relating to violations of zoning, housing, building, environmental, safety or fire ordinances or codes.
(d) There are no outstanding leases which affect the subject Property and that there are no tenants residing in the dwelling erected upon the said premises.
(e) There are no outstanding bills for repairs made by mechanics, material men or the like. Seller further agrees to indemnify and save harmless Buyer against any mechanic’s lien claims.
(f) Seller represents and warrants to Purchaser that, Buyer that Seller has the authority to execute and perform this Agreement.
(g) To the best of Seller's actual knowledge without investigation, the Property (including the land, surface and except subsurface soil, surface water, ground water, and improvements, if any) is free of waste or debris and is free of all contamination (with the sole exception of any fertilizers and other chemicals utilized in the ordinary course of farming operations on Seller's Property), including: (1) any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976, as amended from time to time, and regulations promulgated thereunder; (2) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1960, as amended from time to time, and regulations promulgated thereunder; (3) any substance the presence of which on the Property is subject to regulation as a potential environmental or health hazard by any law or regulation of an applicable governmental body similar to those set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing this Section; and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheetany toxic or hazardous substances or materials, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance whether products or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Businesswastes, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notesasbestos, and security agreements radon, PCB's, or oil or petroleum products. (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases All of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments the foregoing is collectively referred to in this paragraph 4.3(kherein as "Hazardous Materials"), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to To the best of Seller's knowledge, there are no default by underground storage tanks buried on the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)Property.
(lh) Seller warrants that Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under "foreign person" within the terms meaning of which performance by Seller according to Section 1445 of the terms of this Agreement Internal Revenue Code and will be a default or execute an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) appropriate affidavit at or prior to ClosingSettlement.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each Each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans warranties and similar plans representations contained in this Paragraph 6 and payment other Paragraphs of accrued salaries or wages and vacation pay (for which Purchaser this Agreement shall have no liability be deemed made as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation Agreement and again as of the Business, date of Settlement hereunder. Seller's representations and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as warranties set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, this Paragraph 6 shall be continuing and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, deemed to the best be material to Buyer's execution of Sellerthis Agreement and Buyer's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation performance of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its his obligations hereunder.
(p) There are no material claims pending or, to the best . All such representations and warranties shall be true and correct on and as of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance Settlement hereunder with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state same force and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawseffect as if made at that time.
Appears in 1 contract
Samples: Sale Agreement
Seller’s Representations and Warranties. Seller Each Seller, severally and not jointly, as to itself and the interest it owns, represents and warrants to Purchaser Buyer as of the date hereof, and the Closing Date that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is organized as a Delaware limited partnership in commendam, duly organized, validly existing existing, and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power Delaware, and authority is duly qualified to conduct the Business as the Business carry on its business in those states where it is now being conductedrequired to do so.
(b) Except Seller has all requisite power and authority to carry on its business as set forth presently conducted, to enter into this Agreement and the other documents and agreements contemplated hereby, and to perform its obligations under this Agreement and the other documents and agreements contemplated hereby. The consummation of the transactions contemplated by this Agreement will not violate, nor be in conflict with, any provision of its governing documents or any agreement or instrument to which it is a party or by which it is bound (except any provision contained in agreements customary in the Disclosure Scheduleoil and gas industry relating to (1) the Preferential Purchase Rights (defined below) affecting all or any portion of the Assets; (2) required consents to transfer and related provisions; (3) maintenance of uniform interest provisions; and (4) any other third-party approvals or consents contemplated herein), or any judgment, decree, order, statute, rule, or regulation applicable to Seller;
(c) This Agreement, and all documents and instruments required hereunder to be executed and delivered by Seller holds good at Closing, constitute legal, valid and marketable title binding obligations of Seller in accordance with its respective terms, subject to applicable bankruptcy and other similar laws of general application with respect to creditors;
(d) There are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by, or, to the Purchased Assetsknowledge of Seller, free threatened against Seller;
(e) The execution, delivery and clear performance of this Agreement and the transaction contemplated hereunder have been duly and validly authorized by all mortgagesrequisite authorizing action, optionscorporate, partnership or otherwise, on the part of Seller;
(f) The Assets are not subject to any liens, charges, easements, agreements, claims, rights, restrictions security interests or other encumbrances mortgages of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, those that will be released prior to the extent that normal business practice permits, except those items identified or on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.Closing;,
(g) Complete All payments (including all delay rentals, royalties, shut-in royalties and accurate copies of the audited balance sheets, statements of income valid calls for payment or prepayment under operating agreements) owing under any Lease or other agreement referenced in Schedule 1.17(c) have been and retained earnings, statements of cash flowsare being made (timely, and notes to financial statements (together with any supplementary information theretobefore the same became delinquent) of by the Seller, all as and Seller is not in default in any material respect of and for the years ended December 31any obligation under any Lease or other agreement referenced in Schedule 1.17(c) and, 1993to Seller’s knowledge, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All no such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller default has been asserted as of the respective dates thereofEffective Time, and the results date of operations and cash flows this Agreement or as of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.Closing Date;
(h) Complete and accurate copies The operation of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, Assets has been in accordance with GAAPprevailing industry standards and is in compliance with all applicable statutes, consistently applied.laws, ordinances, regulations, rules, rulings, orders, writs, injunctions, decrees or other official acts of or by any governmental authority (“Laws”), and Xxxxxx has received no written notice of any default under, and to Seller’s knowledge no condition exists that with notice or lapse of time or both would constitute a default under, any Law;
(i) The Disclosure Schedule lists Seller possesses all existing Permits licenses, permits, certificates, orders, approvals and such list is complete authorizations necessary to own and correct in all material respects; (ii) such Permits constitute all of operate the Permits currently necessary for the ownership Assets and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.carry on business as now being conducted;
(j) Seller has not suffered All taxes based on or been threatened with any material adverse change in measured by the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat ownership of any labor dispute, Asset or the production of hydrocarbons or the receipt of proceeds therefrom which are due and payable by Seller or any material adverse change in, operator of any Asset have been paid or loss of, any relationship between Seller and any of its customers, suppliers or key employees.are currently being contested in good faith;
(k) The Disclosure Seller has not received written notice of any actual or threatened taking of any part of the Assets by reason of condemnation;
(l) There is no pending action, suit, proceeding, arbitration, claim or investigation by any person, entity, administrative agency or governmental body, pending or, to Seller’s knowledge, threatened against Seller relating to the Assets or against third parties but otherwise impacting Seller’s interests in the Assets as of the Effective Time, the date of this Agreement or as of the Closing Date;
(m) No third party has any option to purchase or similar right under any agreement with respect to production of hydrocarbons attributable to Seller’s interest in any Asset except as set forth on Schedule correctly 4(m).
(n) Except as set forth on Schedule 4(n), there are no existing commitments or obligations or authorities for expenditure for which Buyer will be liable to pay costs or expenses in excess of $50,000.00 for the drilling, completing, equipping, maintaining, deepening, side tracking, reworking or plugging and completed lists and describes all material contracts, leasesabandonment of any Asset or other costs or expenses arising from or relating to the ownership of any Asset, and agreements to no operation has been proposed on any Asset for which Seller is a party and which relate has not yet responded.
(o) The Assets are not subject to any Preferential Purchase Rights except as set forth on Schedule 4(o);
(p) With respect to any agreement or contract for the sale of hydrocarbons affecting or relating to the conduct Assets (the “Sales Contracts”): o Seller is not obligated by virtue of (i) any prepayment arrangement, (ii) a “take-or-pay” or similar provision, (iii) a production payment, or (iv) any other arrangement to deliver hydrocarbons produced from the Assets at some future time without then or thereafter receiving full payment therefor. o Payments for hydrocarbons sold pursuant to each of the Business, including, without limitation: employment Sales Contracts are current (subject to adjustment in accordance with the Sales Contracts) and employment-related agreements; covenants to Seller’s knowledge in accordance with the prices set forth in the Sales Contracts. o No Sales Contract has a term in excess of 60 days or is not to compete; loan agreements, notes, and security agreements terminable upon notice of 60 days or less except as set forth on Schedule 4(p);
(other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to q) To the best of Seller's knowledge, no breach or default by the other contracting parties has occurred thereunder. No event, occurrence any third party (or condition exists which, situation which with the lapse passage of time, the time or giving of noticenotice would create a breach or default) exists, to the extent such breach or bothdefault (whether by Seller or such a third party) could reasonably be expected to materially adversely affect the ownership, operation, value or the happening use of any further event or condition, would become Asset after the Effective Time;
(r) Schedule 1.17(c) is a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies list of all such material contracts and agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) to which any of the Disclosure Schedule. Assets are bound, including (a) joint operating agreements, (b) agreements with any Affiliate of Seller, (c) any production sales contracts, (d) any agreement of Seller shall indemnify Purchaser as required under Section 1.2 hereofto sell, against losslease, cost farmout or liability under otherwise dispose of any contractof its interests in the Assets other than conventional rights of reassignment, lease (e) gas balancing agreements, (f) exploration agreements, (g) pooling, unitization or agreement not disclosed communitization agreement, (h) area of mutual interest agreements and (i) agreements containing seismic licenses, permits and other rights to Producer as required in this Section 4.3(k).geological or geophysical data and information directly or indirectly relating to the Assets;
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(ms) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans4(s), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for does not have any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or Imbalances arising with respect to the consummation Assets, and (i) no person is entitled to receive any material portion of the transaction contemplated herebySeller’s hydrocarbons produced from the Assets or to receive material cash or other payments to “balance” any disproportionate allocation of hydrocarbons produced from the Assets under any operating agreement, gas balancing or storage agreement, gas processing or dehydration agreement, gas transportation agreement, gas purchase agreement, or the use of the Purchased Assets other agreements, whether similar or dissimilar, (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(qii) Seller is not a party to, or bound by, obligated to deliver any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (material quantities of gas or to which pay any of material penalties or other amounts, in connection with the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached terms of any gas contract or other agreement with shippers with respect to the Disclosure Schedule.Assets, and (iii) Seller is not obligated to pay any material penalties or other material payments under any gas transportation or other agreement as a result of the delivery of quantities of gas from the Xxxxx in excess of the contract requirements; and
(st) SellerExcept as disclosed on Schedule 3.3(b)(5), the Purchased Assets and the Business there are in compliance no amounts held In suspense by Seller with all Environmental Laws (as herein defined) and respect to any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsAssets.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to Buyer that as of the best date it executes this Agreement and as of Seller's knowledge and except as set forth in the Disclosure ScheduleClosing:
(a) Seller is a limited partnership in commendam, liability company duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaCalifornia. Esam Hhacho is the majority member and sole manager of Seller
(b) Seller has all necessary the full limited liability company power and authority to conduct the Business as the Business execute, deliver and perform its obligations under this Agreement. The execution and performance of this Agreement will not result in a breach of, violate any term or provision of, or constitute a default under, any articles of incorporation, bylaws, partnership agreement, partnership certificate, articles of organization, operating agreement, indenture, deed to secure debt, deed of trust, mortgage, lease or other document by which Seller, or Seller’s members or manager, is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good bound. This Agreement and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claimsinstruments and documents herein provided to be executed by Seller are and as of the Closing will be duly authorized, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, executed and all items of Equipment, Inventory delivered by and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentwill be binding upon Seller.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "To Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller’s actual knowledge, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred due diligence materials (excluding all third party reports delivered to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subjectBuyer), including, without limitation, lawsall reports, statutes and regulations relating to equal employment opportunitiessurveys, fair employment practicesstudies, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discriminationtax records, and zoning ordinances exhibits to this Agreement, have been prepared and building codes. Copies assembled in the ordinary course of business by Seller and are believed by Seller to be substantially true, complete and accurate in all notices material respects.
(d) To Seller’s actual knowledge, all permits required for the Property have been duly and validly issued, are in full force and effect, have been fully paid for (other than normal recurring annual permit or license fees set forth in the operating statements of the Property provided to Buyer), and Seller has received no notice of violation of any permit.
(e) There is no litigation or arbitration or other legal or administrative suit, action or proceeding of the foregoing any kind (for which Seller has received within the past three years are attached service of process) (each, a “Proceeding”) pending (or, to the Disclosure Schedule.
(s) actual knowledge of Seller, threatened) against Seller or the Purchased Assets Property that: (i) could detrimentally and materially affect the Business are value, ownership, use, or operation of the Property or the ability of Seller to perform its obligations under this Agreement or (ii) has an uninsured claim for damages in compliance excess of Twenty Five Thousand Dollars ($25,000) or, when taken together with all Environmental Laws other Proceedings, have uninsured claims for damages in excess of Fifty Thousand Dollars (as herein defined) and any Environmental Permits (as herein defined$50,000). A copy of any noticeThere are no condemnation, citation, inquiry environmental or complaint zoning proceedings instituted or planned to be instituted (for which Seller has received in notice) that would affect the past three years Property and Seller has not received notice of any alleged special assessment proceedings affecting the Property. Seller shall notify Buyer promptly of any such proceedings or litigation of which Seller acquires actual knowledge after the date of this Agreement and before the Close of Escrow.
(f) Seller is not a “foreign person” as defined in §1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
(g) Seller owns fee simple title to the Property, subject to Permitted Exceptions.
(h) Except as disclosed to Buyer, at the time of Closing there will be no outstanding written contracts made by Seller for any improvements to the Property which have not been fully paid for and Seller shall cause to be discharged or bonded over all mechanics’ and materialmen’s liens arising from any labor or materials furnished to the Property prior to the time of Closing (other than any such liens arising from Buyer’s inspection activities on the Property).
(i) To Seller’s actual knowledge, there are no obligations in connection with the Property which could be binding upon Buyer or affect the Property after Closing (except for those (i) disclosed to Buyer during the Approval Period, (ii) imposed by a public agency having jurisdiction over the Property; (iii) assumed by Buyer pursuant to the terms of this Agreement or (iv) terminable at Buyer’s will or upon thirty (30) days advance notice) and there are no assessments or bonds assessed or, to the actual knowledge of Seller, proposed to be assessed, against the Property. To the actual knowledge of Seller, there are no existing or proposed easements, covenants, conditions, restrictions, agreements or other documents which affect title to the Property and which are not disclosed by the Title Policy. Except as disclosed, Seller has not granted any option or right of first refusal or first opportunity to any party to acquire title to the Property.
(j) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or to Seller’s actual knowledge, threatened against Seller, nor are any such proceedings contemplated by Seller.
(k) Neither Seller nor, to the actual knowledge of Seller, any prior owner or occupant of the Property has engaged in or permitted any activity on the Property involving the handling, manufacture, treatment, storage, use, release, or disposal of any “Hazardous Materials” (as hereinafter defined), or has transferred Hazardous Materials from the Property to another location in violation of any Environmental Law applicable codes, laws, rules or Environmental Permit is attached regulations. Seller has not received written notice (and to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation actual knowledge of the BusinessSeller, Seller’s property manager has not received notice), and otherwise Seller has no actual knowledge, that removal or other remedial action with respect to Hazardous Materials in, on, under or about the Property is in compliance with presently required by any governmental authority having jurisdiction over the provisions Property. For purposes of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "the term “Hazardous Materials” shall mean any toxic or hazardous waste, material or substance, including, without limitation, asbestos, asbestos containing materials, petroleum, petroleum products, underground storage tanks now or previously containing any other Hazardous Materials, substances defined as “hazardous substances”, “hazardous waste” or “toxic substances” in the Comprehensive Environmental Laws" means all federalResponse, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq.; Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801; and Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq.; and other substances defined as hazardous waste and/or hazardous substances in applicable state and or local statutes, regulations, ordinances, rules, laws and/or in any regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued publications promulgated pursuant to Environmental Lawssaid laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Portfolio from Seller, each Seller represents makes the following representations and warrants warranties to Purchaser that, to Buyer (it being expressly understood and agreed that each of the best of Seller's knowledge representations and except as warranties set forth in below are being made by each Seller, as to itself and the Disclosure Schedule:Property it owns, and no representations and warranties of any Seller below shall relate to any other Seller or any Property owned by any other Seller).
(a) Except for KBS CrossPoint at Valley Forge Trust, which is a Delaware Statutory Trust, each Seller Party is a limited partnership in commendam, liability company duly organized, validly existing existing, ACTIVE 31157768v21 ‑20‑ and in good standing, standing under the laws of the State of LouisianaDelaware. Subject to KBS REIT III’s obtaining board approval pursuant to Section 7.2(i) above, each Seller Party has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedulelegal right, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents to consummate the transactions contemplated hereby, and instruments subject to be executed by Seller KBS REIT III’s obtaining board approval pursuant to this Agreement (collectivelySection 7.2(g) above, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the transactions contemplated by valid and binding execution, delivery and performance of this Agreement. , except as otherwise expressly set forth herein.
(b) The sale transaction contemplated by obligations of each Seller Party under this Agreement is being made constitute its legal, valid and binding obligations enforceable against it in connection accordance with its terms.
(c) To each Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, no Seller has received written notice from any governmental agency in the winding-up of last twelve (12) months that the Property owned by such Seller 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 contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980have been fully cured.
(d) No consentTo each Seller's Actual Knowledge, authorizationexcept as disclosed on Schedule 2 attached hereto, order it has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to its Property.
(e) To each Seller's Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or approval ofmatters covered by such Seller’s commercial liability insurance, no such Seller has received service of process with respect to any litigation that has been filed and is continuing against such Seller that arises out of the ownership of the Property and would materially affect its Property or such Seller.
(f) To each Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, no Seller has received written notice in the last twelve (12) months of a violation under any declaration of covenants, conditions and restrictions, reciprocal easement agreements, or filing similar instrument recorded against the Property owned by such Seller, except with respect to such violations as have been fully cured.
(g) To each Seller’s Actual Knowledge, such Seller, nor any of its respective affiliates or registration withconstituents (but expressly excluding the shareholders of KBS REIT III), nor any governmental authority of their respective brokers or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (i) conducting any business or engaging in any transaction or dealing with any person appearing on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) list of restrictions and Seller's Ancillary Documents.
prohibited persons (e“Prohibited Person”) Neither (which lists can be accessed at the execution following web address: xxxx://xxx.xxxxxxx.xxx/offices/enforcement/ofac/), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; or (ii) 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, relating to “Blocking Property and delivery Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”; or (iii) engaging in or conspiring to engage in any transaction ACTIVE 31157768v21 ‑21‑ that evades or avoids, or has the purpose of this Agreement and Seller's Ancillary Documents by Sellerevading or avoiding, nor the consummation by Seller of the transactions herein contemplatedor attempting to violate, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of prohibitions set forth in 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsU.S. anti-money laundering law.
(h) Complete and accurate copies of the unaudited balance sheetTo each Seller’s Actual Knowledge, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects received written notice of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor disputeattachments, executions, assignments for the benefit of creditors, or any material adverse change in, voluntary or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to involuntary proceedings in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of bankruptcy or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authoritydebtor relief laws contemplated by, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in such Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Portfolio Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(ai) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds owns good and marketable fee simple title to the Purchased AssetsProperty, free and clear no party has the right or option to acquire all or any portion of all mortgagesthe Property, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, Purchaser pursuant to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.terms of this Agreement,
(cii) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(diii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iv) there is no existing or pending (or to Seller’s Knowledge threatened) litigation affecting Seller or the Property,
(v) to Seller’s Knowledge there does not exist, and Seller has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(vi) to Seller’s Knowledge there does not exist, and Seller has not received, with respect to the conduct Property, written notice from any governmental authority regarding any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vii) there are no service contracts, equipment leases and/or maintenance agreements affecting the Property, other than Contracts, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below,
(viii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(ix) there are and will be no parties in possession of, without limitation: employment and employment-related agreements; covenants not to compete; loan agreementsor claiming any possession to, notesany portion of the Property, and security agreements (other than notestenants under Leases, loan if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below, as reflected on the rent roll to be provided by Seller to Purchaser at Closing (the “Rent Roll”),
(x) at Closing there will be no unpaid bills or claims in connection with any construction or repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(xi) the Rent Roll shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent shall have been given other than those reflected on such Rent Roll,
(xii) all information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, is true, correct and complete in all material respects,
(xiii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or insurer,
(xiv) there are no employment agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xv) the Improvements will be, and as of the Closing Date shall have been, constructed in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, material conformance with the lapse of timePlans and Specifications,
(xvi) the Improvements, following completion, shall be free from the giving of notice, presence or both, or the happening suspected presence of any further event or conditionform of mold, would become a default by Seller thereunder. Seller has given including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(or will give, during the Inspection Periodxvii) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleSeller’s Knowledge, there are no commissions underground storage tanks located on or referral fees under the Property, there are no conditions on, at or relating to the Business currently outstanding, nor will there be any such commissions Property which are in non-compliance with “Environmental Requirements” (as defined below) or referral fees outstanding, on or after otherwise adversely affect the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equityProperty, and there are no proceedings “Hazardous Materials” (as defined below) on, in or governmental investigations before under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements, and to Seller’s Knowledge there does not exist, and Seller has received no notice, regarding any commission environmental contamination on, at or other administrative authority, pending, or, adjacent to the best Property. Notwithstanding the foregoing, Seller hereby discloses to Purchaser that during the course of Seller's knowledgeconstructing the Improvements Seller installed underground storm water retention tanks to comply with the approved Storm Water Prevention Plan for the Property and in accordance with the Plans and Specifications,
(xviii) on or before Closing, threatenedSeller shall obtain all necessary certificates, against Seller or its Affiliateslicenses and other approvals, or with respect to governmental and otherwise, necessary for the consummation operation of the transaction contemplated herebyProperty and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or the use approvals, all of which, as of the Purchased Assets (whether used by Purchaser after the Closing Closing, shall be in full force and effect and not subject to revocation, suspension, forfeiture or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.modification,
(pxix) There are no material claims pending orto Seller’s Knowledge the Property is legally compliant and conforms with all applicable zoning laws, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.rules and regulations,
(qxx) Seller is not a party toin compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Executive Order and such other rules, regulations, legislation, or bound by, orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any decree, order, judgment beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Executive Order and/or on any other list of terrorists or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect terrorist organizations maintained pursuant to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assetsrules and regulations of OFAC or pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders; or (c) is owned or controlled by, or acts for or on behalf of, any of Seller's personnelperson on the OFAC Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders, or the Business are subject any other anti-terrorism or to which it, itself, is subject)anti-money laundering laws or regulations, including, without limitation, lawsthe Bank Secrecy Act, statutes as amended, or the Money Laundering Control Act of 1986, as amended,
(xxi) there are no Leases, Tower Leases or Billboard Leases affecting the Property other than those approved in writing by Purchaser, (xxii) the Plans and regulations relating Specifications include the unit mix set forth on Exhibit “K” attached hereto, and
(xxiii) Seller has obtained all building permits and other governmental approvals as may be necessary to equal employment opportunities, fair employment practices, unfair labor practices, terms commence and complete construction of employment, occupational health and safety, wages and hours and discriminationthe Improvements, and zoning ordinances and building codes. Copies of further has obtained all notices of violation of any necessary financing to enable Seller to complete construction of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleImprovements.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. Seller warrants and represents and warrants to Purchaser thatas follows, which warranties and representations shall be deemed made on the Effective Date and shall be reaffirmed at Closing (subject to any change hereafter occurring with respect to the best of Seller's knowledge and except as set forth information referred to in the Disclosure Schedule:
(a) Seller is a limited partnership in commendamsubsections E. F., duly organizedH. I., validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedor J.).
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable A. The title to the Purchased AssetsProperty is, and at Closing will be, free and clear of all mortgages, options, liens, chargesencumbrances or leases, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than except the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, . It shall be a condition to Purchaser’s obligation to proceed to the extent Closing that normal business practice permitstitle to the Property will be marketable and good of record and insurable at standard title insurance company rates of Chicago Title Insurance Company, except those items identified on subject only to the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentPermitted Exceptions.
(c) B. Seller is a validly existing Delaware limited partnership in good standing and has full partnership power and the authority to enter into and perform its obligations under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by person executing this Agreement is being made in connection with the winding-up on behalf of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980has been authorized to do so.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's C. The execution and delivery of this Agreement and Seller's Ancillary Documents do not, and the consummation by Seller of the transactions transaction contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Sellerhereby will not in any material respect, nor the consummation by Seller of the transactions herein contemplatedrequire any approval, will conflict with consent, authorization or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsorder of, or of filing with, any statute private party or administrative regulationany governmental agency or body or violate any law, rule or of regulation or any order, writ, injunctionarbitration award, judgment or decree of any court or any governmental authority or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and or by which relate to the conduct it or any of the Business, including, without limitation: employment and employment-related agreements; covenants Property is bound.
D. The Property is not subject to compete; loan agreements, notes, and security agreements (any option contract or other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of noticecontract, or both, or the happening of to any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note leases or other instrument under the terms of which performance occupancy agreements created by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) E. Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equityknowledge of, and there are has received no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit notice from, any Federal, state or local governmental authority (requiring any work, repairs, construction, alterations or to which installations on or in connection with the Property, or asserting any violation of any federal, state, county or municipal laws, ordinances, codes, orders, regulations or requirements affecting any portion of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject)Property, including, without limitation, lawsany applicable environmental laws or regulations. There is no action, statutes and regulations suit or proceeding pending or, to the knowledge of Seller, threatened against or affecting Seller or the Property or any portion thereof or relating to equal employment opportunitiesor arising out of the ownership of the Property, fair employment practicesin any court or before or by any federal, unfair labor practicesstate, terms of employmentcounty or municipal department, occupational health and safetycommission, wages and hours and discriminationboard, bureau or agency or other governmental instrumentality. The Seller is not a debtor in any bankruptcy or other insolvency proceeding.
F. The Seller has not received from any governmental authority any written notice of, and zoning ordinances the Seller presently has no knowledge of, pending or contemplated condemnation proceedings affecting the Property.
G. At or before the Closing, Seller shall duly terminate any management or leasing contract or fee arrangement between Seller and building codes. Copies any other party for or in connection with the Real Property, all payments due thereunder will be paid in full by Seller at or prior to Closing, and Seller shall hold Purchaser harmless from any claims thereunder, unless Purchaser, at its sole option, assumes any such agreement in writing.
H. Seller has not received any notice from any insurance company or any board of all notices fire underwriters (or other body exercising similar functions) claiming any defects or deficiencies with respect to, or requesting the performance of any repairs, alterations or other work to, the Property.
I. To Seller’s knowledge without investigation, except as may be set forth in any environmental assessment to be delivered to Purchaser pursuant to Section 3 of this Agreement or as otherwise disclosed to Purchaser within five (5) days after the Effective Date, (i) the Real Property described in Exhibit “A” is not in violation of any applicable environmental law, including without limitation the Resource Conservation and Recovery Act of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule1976, as amended (42 U.S.C. Section 6901 et seq.
(s) Seller, the Purchased Assets and the Business Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.); (ii) no underground storage tanks, asbestos (either commercially processed or excavated raw materials), electrical transformers, fluorescent light fixtures with ballast, or other items or equipment containing polychlorinated biphenyls (“PCBs”), or other material regulated by any applicable environmental law (“Hazardous Materials”) are present on the Real Property described in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received Exhibit “A” in the past three years of any alleged violation of any Environmental Law applicable environmental law; and (iii) Seller has not received any information from neighboring property owners indicating they have any concerns about existing environmental conditions which could affect the Property or Environmental Permit is attached suggesting they might look to Seller for contribution to clean up or remediate such condition. In the event Purchaser shall discover such Hazardous Materials, toxic substances, tanks or other unsatisfactory (in Purchaser’s sole discretion) environmental conditions on the Property at any time prior to Closing, as Purchaser’s sole remedy, Purchaser shall have the right to terminate this Agreement upon written notice thereof to Seller. Notwithstanding anything to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for contrary herein, the operation effect of the Business, and is representations made in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued this subsection shall be deemed to Seller are attached be modified to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination extent of any type whatsoever; information to the contrary obtained by any inspections, tests or investigations made by Purchaser or any of its agents, consultants, contractors, subcontractors, or any of its or their respective agents, employees or representatives agents, employees and "Environmental Permits" means licensesrepresentatives prior to the end of the Review Period.
J. To Seller’s knowledge, permitsno assessments or charges for any public improvements have been made against the Property which remain unpaid and no improvements to the Property or any roads or facilities abutting the Property have been made or ordered for which a lien, registrations, governmental approvals, agreements and consents which are required under assessment or are issued pursuant to Environmental Lawscharge can be filed or made.
K. Deleted Intentionally.
L. Deleted Intentionally.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) Each entity comprising Seller is a limited partnership in commendam, duly organized, liability company validly existing and in good standing, standing under the laws of the State of Louisiana. Seller Texas and has all necessary requisite limited liability company power and authority to conduct execute, deliver and perform this Agreement, and to consummate the Business as the Business is now being conductedtransactions contemplated hereby.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenbeen duly authorized, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement and constitutes a the legal, valid and legally binding obligation of Seller, Seller and is enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement such enforceability may be affected limited by laws relating to bankruptcy, reorganization, insolvency and creditors' insolvency, or similar laws of general applicability governing the enforcement of the rights and of creditors or by the availability general principles of injunctive relief, specific performance and other equitable remediesequity (regardless of whether considered in a proceeding at law or in equity). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(dc) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's The execution and delivery of this Agreement and by Seller's Ancillary Documents , and the consummation performance of this Agreement by Seller, have been duly authorized by Seller, and this Agreement is binding on Seller and enforceable against Seller in accordance with its terms. No consent of any creditor, investor, judicial or administrative body, Health Department or other Governmental Authority, or other party to such execution, delivery and performance by Seller is required except as set forth herein. Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
hereby will (ei) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the termsof, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsdefault under, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss acceleration of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements agreement to which Seller is a party and or by which relate to Seller or the conduct of the BusinessProperty are bound; or (ii) violate any restriction, includingcourt order, without limitation: employment and employment-related agreements; covenants not to compete; loan agreementspermit, notes, and security agreements (agreement or other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments legal obligation to which Seller and/or any Facility is subject.
(d) Seller is the owner of the Transferred Personal Property and the leasehold estate created by the HCN Lease. Except with respect to property owned by HCN and leased to Seller pursuant to the HCN Lease and the Right Click Software (which do not constitute a partypart of the Property), the Property includes all property necessary to operate the Facilities (and which is being used to operate the Facilities) as assisted living and memory care facilities. The Facilities are managed by Manager.
(e) Seller has delivered to Purchaser true and complete copies of all of the Documents. To the best of Seller’s knowledge, none of the Documents contains any untrue statement of a fact or omits to state a fact necessary to make any statement of fact contained therein not misleading in full force any material respect. Seller agrees that it will provide to Purchaser within three (3) days of written request of Purchaser any other document or information reasonably available to Seller or within Seller’s control relating to the Facilities.
(f) Seller has satisfied all material requirements set forth in the HCN Lease, and neither Seller nor HCN is in default under the HCN Lease. No set of circumstances exists which with the giving of notice or passage of time would constitute an Event of Default (as defined in the HCN Lease) under the HCN Lease. The HCN Lease constitutes the valid and binding upon obligations of Seller and HCN and is enforceable according to its terms. There are no agreements between (i) Seller or any of Seller’s Affiliates and (ii) HCN or any of HCN’s Affiliates except as set forth in the parties thereto. No default by HCN Lease, loan documents with HCN, the insurance side letter and the side letter concerning the Xxxxxxx Mac financings.
(g) The Facilities or their use and operation are not currently in violation of any material applicable Governmental Requirements, licenses, permits and authorizations (including the Permits and the Provider Agreements).
(h) Seller has occurred thereunder andnot received any written notice alleging that any Seller is in default under any of the Permits, Provider Agreements, or Service Contracts, nor to the best of Seller's knowledge, no ’s knowledge does there exist a default by the other contracting parties has occurred thereunder. No event, occurrence (or condition exists which, any event or circumstance which with the lapse of time, the giving of notice, passage of time or bothboth would constitute a default) under any of the Permits, Provider Agreements, or Service Contracts.
(i) Other than the happening Management Agreement, there are no contracts of any further event kind relating to the management, operation, maintenance or repair of the Facilities except for the Service Contracts and Provider Agreements. All of the Service Contracts to which any Seller is party binding or affecting the Facilities are identified on Schedule 5.2(i) attached hereto and made a part hereof and Seller has delivered to Purchaser as part of the Documents true and complete copies of the Service Contracts.
(j) To the best of Seller’s knowledge, the Facilities contain no material structural defects or deficiencies and are in good order and repair and are free of insect and rodent infestation. The roofs of the Facilities are free of leaks or other material defects, and all mechanical and utility systems servicing the Facilities (including, but not limited to, HVAC systems) are in good condition and proper working order, free of material defects and are in compliance with all applicable laws and codes. To the best of Seller’s knowledge, the Facilities are free of mold. To the best of Seller’s knowledge, the Transferred Personal Property is in good condition, would become a default working order and repair.
(k) All water, sewer, gas, electric, telephone, drainage and other utility equipment, facilities and services required by Seller thereunderlaw or necessary for the operation of the Facilities are installed and connected pursuant to valid permits; are adequate to service the Facilities; and to the best of Seller’s knowledge are in good operating condition. Seller has given (not received any written notice advising of or will give, during alleging the Inspection Period) to Purchaser true and correct copies existence of all such agreements any fact or leases, condition that would or a detailed description thereof, all as described could result in Section 4.3(k) the termination or impairment of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereoffurnishing of service to the Facilities of water, against losssewer, cost gas, electric, telephone, drainage or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)other such utility services.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleSchedule 5.2(l) attached hereto and made a part hereof, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best knowledge of Seller's knowledge, threatened against threatened, judicial, municipal or directly administrative proceedings affecting the Facilities, or in which Seller or HCN is or will be a party by reason of HCN’s ownership or Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the ’s operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare Facilities or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject)portion thereof, including, without limitation, lawsproceedings for or involving collections, statutes and regulations relating condemnation, eminent domain, alleged building code or environmental or zoning violations, or personal injuries or property damage alleged to equal employment opportunitieshave occurred at the Facilities or by reason of the condition, fair employment practicesuse of, unfair labor practicesor operations at, terms the Facilities. No attachments, execution proceedings, assignments for the benefit of employmentcreditors, occupational health and safetyinsolvency, wages and hours and discriminationbankruptcy, and zoning ordinances and building codes. Copies of all notices of violation of reorganization or other proceedings are pending or threatened against Seller nor are any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedulesuch proceedings contemplated by Seller.
(sm) Seller, Seller now has in full force and effect the Purchased Assets insurance coverages relating to each Facility described on Schedule 5.2(m) attached hereto and made a part hereof (the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined“Insurance Policies”). A copy Seller has not received any written notice from any insurance carrier alleging any defects or inadequacies with respect to any Facility that, if not corrected, would result in termination of insurance coverage or increase in the normal and customary cost of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsInsurance Policies.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capital Senior Living Corp)
Seller’s Representations and Warranties. Seller represents Cyprus Amax and warrants Specialty, --------------------------------------- jointly and severally, hereby represent and warrant to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the below. Disclosure Schedule:of any items not otherwise required to be disclosed shall not create any inference of materiality.
(a) Except as set forth on Schedule 18(a), all required Income Tax Returns with respect to the Company and the Company's Tax Affiliates (including the Chilean Partnership) have been duly filed and Seller will cause to be filed all required Income Tax Returns that are due to be filed on or before the Closing Date on a timely basis (or will have filed an accurate/complete appropriate application for extension of time to file). All such Tax Returns were true, correct and complete in all material respects when filed. Neither the Company nor any of the Company's Tax Affiliates is a limited partnership delinquent in commendam, duly organized, validly existing and the payment of any Tax or estimated Tax payable by or on behalf of the Company or any of the Company's Tax Affiliates for any Taxes for any Tax periods covered by the Tax Returns referred to in the preceding sentence (whether or not shown on such Tax Returns) (other than any Income Taxes the amount or validity of which are being contested in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedfaith by appropriate proceedings).
(b) The Company has delivered to Buyer true copies of the Company's and its Subsidiaries' federal, state and foreign Income Tax Returns for the tax years 1994, 1995 and 1996.
(c) Except as set forth on Schedule 18(c), the Company is not a party to, bound by, or subject to, any obligation under any Tax sharing, Tax indemnification or similar agreement or has any liability for the Taxes of any other Person as a transferee, successor or otherwise.
(d) The Company has not filed a consent pursuant to Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as such term is defined in Section 341(f)(4) of the Code) owned by it.
(e) No property owned by the Company is property that the Buyer, or the Company or any of their Affiliates is or will be required to treat as being owned by another person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, is tax-exempt use property within the meaning of Section 168(h)(1) of the Code or tax-exempt bond financed property within the meaning of Section 168(g) of the Code.
(f) Except as set forth in Schedule 18(f), none of the Disclosure Schedule, Seller holds good and marketable title Company nor any Subsidiary of the Company has given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the Purchased Assets, free and clear payment of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach Taxes of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected thereinthem.
(g) Complete and accurate copies All Taxes that the Company or any Subsidiary of the audited balance sheetsCompany is or was required by Law to withhold or collect have been duly withheld and collected and, statements of income and retained earningsto the extent required, statements of cash flows, and notes have been paid to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedproper Governmental Authority or taxing authority.
(i) The Disclosure Schedule lists all existing Permits and such list There is complete and correct in all material respects; (ii) such Permits constitute all no agreement, plan, arrangement or other contract covering any employee or independent contractor of the Permits currently necessary for Company or any of its Tax Affiliates that could give rise to the ownership and operation payment of any amount that could not be deductible pursuant to Section 280G of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewithCode.
(j) Seller has not suffered There are no pending, proposed, or, to the Knowledge of Seller, threatened, audits, judicial proceedings, assessments or been threatened deficiencies with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects respect to Taxes of the Business, including, without limiting the generality of the foregoing, the existence Company or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customersSubsidiaries. There is no pending, suppliers proposed, or, to the Knowledge of Seller, threatened, claim by any Governmental Authority in any jurisdiction in which any of the Seller, the Company of any of its Tax Affiliates do not pay Taxes or key employeesfile Tax Returns that any such Person is required to pay Taxes or file Tax Returns.
(k) The Disclosure Except as set forth in Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k18(k), and all other contracts neither the Company nor any of its Subsidiaries has agreed or instruments is required to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of make any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in adjustment under Section 4.3(k481(a) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereofCode or any comparable provision of state, against loss, cost local or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)foreign law.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request No liens for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or Taxes exist with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel income or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation operations of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and Company or any Environmental Permits (as herein defined). A copy of its Subsidiaries other than any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits lien for Taxes which are required for the operation of the Business, being contested in good faith and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsby appropriate proceedings.
Appears in 1 contract
Samples: Tax Sharing and Indemnification Agreement (Cyprus Amax Minerals Co)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser thatthat as of the Closing Date: (i) each of the Transaction Documents and the transactions contemplated hereby and thereby, to have been duly and validly authorized by Seller and all necessary actions have been taken; (ii) this Agreement and the best other Transaction Documents have been duly executed and delivered by Seller and constitute the valid and binding obligations of Seller's knowledge and Seller enforceable in accordance with their terms, except as set forth enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and by general principles of equity; (iii) the execution and delivery of the Transaction Documents by Seller, the sale of the Patent Rights in accordance with the Disclosure Schedule:
terms hereof, and the consummation by Seller of the other transactions contemplated by the Transaction Documents do not and will not conflict with or result in a breach by Seller of any of the terms or provisions of, or constitute a default under (a) Seller’s formation documents or bylaws, each as currently in effect, (b) any indenture, mortgage, deed of trust, or other material agreement or instrument to which Seller is a limited partnership in commendamparty or by which it or any of its properties or assets are bound, duly organizedexcept as would not reasonably be expected to have a material adverse effect, validly or (c) any existing and in good standingapplicable law, under rule, or regulation or any applicable decree, judgment, or order of any court, United States federal, state or foreign regulatory body, administrative agency, or other governmental body having jurisdiction over Seller or any of Seller’s properties or assets, except as would not reasonably be expected to have a material adverse effect; (iv) no further authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the laws stockholders or any lender of Seller is required to be obtained by Seller for the sale of the State Patent Rights to Purchaser or the entering into of Louisiana. the Transaction Documents; (v) Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of under all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or applicable provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts law to execute and records are, deliver each Transaction Document and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respectscarry out their provisions; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this AgreementSeller owns all right, Seller has 136 full-time active employees in the operation of the Businesstitle, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, interest in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject)Patent Rights, including, without limitation, lawsall right, statutes title and interest to xxx for infringement of the patents; (vii) Seller has obtained and properly recorded previously executed assignments for the Patents as necessary to fully perfect its rights and title therein in accordance with governing law and regulations relating to equal employment opportunitiesin each respective jurisdiction; (viii) except as set forth in Schedule 3(viii), fair employment practicesthe Patent Rights are free and clear of all liens, unfair labor practicesclaims, terms of employmentmortgages, occupational health and safety, wages and hours and discriminationsecurity interests or other encumbrances, and zoning ordinances restrictions; (ix) there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of Seller, threatened against or affecting Seller before or by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any other person which would reasonably be expected to adversely affect Seller’s ability to consummate the transaction contemplated hereunder; (x) to the knowledge of Seller, there are no written actions, suits, investigations, claims, or proceedings threatened, pending, or in progress relating in any way to the Patent Rights; (xi) there are no existing contracts, agreements, options, commitments, proposals, bids, offers, or rights with, to, or in any person to acquire any of the Patent Rights; (xii) neither Purchaser nor any of its officers, directors, stockholders, members, managers, employees, agents or representatives has made any representations or warranties to Seller or any of its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction Documents, Seller is not relying on any representation, warranty, covenant or promise of Purchaser or its officers, directors, members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; (xiii) Seller acknowledges that the State of Utah has a reasonable relationship and building codes. Copies sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto such that the laws and venue of all notices the State of violation Utah, as set forth more specifically in Section 6.3 below, shall be applicable to the Transaction Documents and the transactions contemplated therein; (xiv) Seller has not put a third party on notice of actual or potential infringement of any of the foregoing which Seller has received within the past three years are attached Patent Rights; (xv) to the Disclosure Schedule.
(s) Seller’s knowledge, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation none of the BusinessPatent Rights is currently involved in any reexamination, reissue, interference proceeding, or any similar proceeding, and is in compliance with the provisions of all no such Environmental Permits. Copies of all Environmental Permits issued proceedings are pending or threatened; and (xvi) to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policiesSeller’s knowledge, all court orders maintenance fees due and decrees and arbitration awards, and payable on the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsPatent Rights have been timely paid.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser Buyer that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller it is a limited partnership in commendam, California local healthcare district duly organized, organized and validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.existing;
(b) Except as set forth in it has the Disclosure Schedulefull right, Seller holds good and marketable title to the Purchased Assetspower, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into this Agreement, and to perform its obligations under this Agreement;
(xc) the execution of this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement its Representative whose signature is set forth at the end hereof has been, and Seller's Ancillary Documents will be, been duly authorized by all necessary partnership action(s), and duly actions of the Party;
(d) when executed and delivered by general partners each of Seller so authorized. This Buyer and Seller, this Agreement constitutes a valid will constitute the legal, valid, and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.terms;
(e) Neither the execution and delivery of it is in material compliance with all Laws applicable to this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.Agreement;
(f) Seller's booksthe execution, accounts and records aredelivery, and have beenperformance of this Agreement by Seller will not violate, maintained conflict with, require consent under, or result in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is any breach or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.default under
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to contract which Seller is a party, are in full force and binding upon the parties thereto. No default by (ii) any of Buyer’s organizational documents or
(iii) any applicable Law;
(g) Seller has occurred thereunder andgood and marketable title to, and the right to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of timetransfer, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Modular Building;
(h) Seller has given (not leased or will give, during otherwise contracted for the Inspection Period) to Purchaser true and correct copies of all such agreements possession or leases, or a detailed description thereof, all as described in Section 4.3(k) use of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:Modular Building;
(i) there is after reasonable inquiry, Seller has no pending actual knowledge of any third party that may claim any right, title, or threatened unfair labor practice charges or employee grievance charges;interest in the Modular Building; and
(iij) there is no request for union representationSeller’s right, labor striketitle, dispute, slowdown or stoppage actually pending or, and interest to the best Modular Building is free and clear of all liens, security interests, taxes, or other Encumbrances. Seller's knowledge’s representations and warranties set forth in this Section 5.01 will survive Closing. Seller covenants to Buyer that Seller shall, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending at its own cost and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost expense, defend Buyer’s title to the Seller except for payments required under Modular Building against the demands of anyone claiming through Seller's employee benefit plans. As used herein, employee welfare plans and similar plans and payment the term “knowledge” means the actual knowledge of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this AgreementClosing. Except as otherwise expressly indicated, Seller has 136 full-time active employees in not undertaken any independent investigation to determine the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation accuracy of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedulesuch statement.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(ai) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds owns good and marketable fee simple title to the Purchased AssetsProperty, free and clear no party has the right or option to acquire all or any portion of all mortgagesthe Property, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, Purchaser pursuant to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.terms of this Agreement,
(cii) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(diii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iv) there is no existing (or to Seller’s actual knowledge threatened) litigation affecting Seller or the Property,
(v) Seller has no actual knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(vi) Seller has no actual knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vii) there are no service contracts, equipment leases and/or maintenance agreements affecting the Property, other than Contracts, if any, hereafter approved in writing by Purchaser pursuant to Section 5.3 below,
(viii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(ix) there are and will be no tenant leases in effect relating to the Property, without limitation: employment other than those leases described in Section 5.4 below, all of which leases shall be cancelled by Seller by Closing, at Seller’s sole cost and employment-related agreements; covenants not expense,
(x) all documentary information delivered by Seller to compete; loan agreementsPurchaser pursuant to Section 4.1 hereof, notesis a complete copy of the original in Seller’s possession or control,
(xi) Seller has no actual knowledge, and security agreements (other than noteshas received no notice, loan agreements and related security documents that are being satisfied regarding any environmental contamination on, at or prior adjacent to Closing); sales representativethe Property,
(xii) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, distribution, franchise, advertising and similar agreements; concession except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or occupancy agreements; leases and subleases insurer,
(xiii) there are no employment agreements of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments any kind to which Seller is a party, are in full force and including union or collective bargaining agreements, which will be binding upon on Purchaser after the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given Closing,
(or will give, during the Inspection Periodxiv) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure ScheduleSeller’s actual knowledge, there are no commissions underground storage tanks located on or referral fees under the Property, there are no conditions on, at or relating to the Business currently outstanding, nor will there be any such commissions Property which are in non- compliance with “Environmental Requirements” (as defined below) or referral fees outstanding, on or after otherwise adversely affect the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equityProperty, and there are no proceedings “Hazardous Materials” (as defined below) on, in or governmental investigations before under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xv) to Seller’s actual knowledge, the Property is legally compliant and conforms with all applicable zoning laws, rules and regulations,
(xvi) Neither Seller nor any commission or other administrative authority, pending, or, to the best beneficial owner of Seller's knowledge: (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, threatened, against Seller or its Affiliates, or with respect to the consummation Department of the transaction contemplated herebyTreasury (“OFAC”) pursuant to Executive Order No. 133224, 66 Fed. Reg. 49079 (September 25, 2001) (the “Order”) and/or on any other list of terrorists or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability terrorist organizations maintained pursuant to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assetsrules and regulations of OFAC or pursuant to any other applicable orders (such lists are collectively referred to as the “Lists”); (b) is a person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Order,
(xvii) at Closing there will be no unpaid bills or claims in connection with any construction or repair of Seller's personnel, the Property by or on behalf of Seller that could result in the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms filing of employment, occupational health and safety, wages and hours and discriminationa lien against the Property,
(xviii) the Improvements will be, and zoning ordinances and building codes. Copies of all notices of violation of any as of the foregoing which Seller has received within Closing Date shall have been, constructed substantially and in all material respects in accordance with the past three years are attached to Plans and Specifications, with no defects in the Disclosure Schedule.drainage systems, foundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and
(sxix) Selleron or before Closing, the Purchased Assets Seller shall obtain all necessary certificates, licenses and the Business are in compliance with all Environmental Laws (as herein defined) other approvals, governmental and any Environmental Permits (as herein defined). A copy of any noticeotherwise, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required necessary for the operation of the BusinessProperty and the conduct of its business and all required zoning, building code, land use, environmental and is other similar permits or approvals, all of which, as of the Closing, shall be in compliance full force and effect. Seller shall deliver a certificate to Purchaser at Closing updating and recertifying all of the foregoing representations and warranties to Purchaser so as to be effective and deemed given as of the Closing Date. Seller’s representations and warranties set forth in this Section 4.3 and anywhere else in this Agreement shall survive Closing for a period of one (1) year. Purchaser shall assert any claims or bring any causes of action based on Seller’s alleged breach of any such representations or warranties within said one (1) year period or be forever barred from asserting or bringing same. This limitation shall survive Closing and shall not merge with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached Deed or title to the Disclosure ScheduleProperty. As used in this Agreement, "including without limitation this Section 4.3, Seller’s “knowledge,” “actual knowledge” (or words or phrases of similar meaning) shall mean the actual, but not constructive or imputed, knowledge of Xxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxx (the “Seller’s Knowledge Individuals”), without independent inquiry or investigation for the purpose of making any representation contained in this Agreement. The foregoing named individuals are identified solely for the purpose of defining the scope of Seller’s knowledge and not for the purpose of imposing any liability or duties on such individuals and Purchaser shall not bring any action of any kind against such individuals relating to or arising out of this Agreement. Seller represents and warrants that the Seller’s Knowledge Individuals are the most knowledgeable individuals within Seller’s business organization with respect to both the Property and the factual accuracy of the representations and warranties of Seller set forth in Section 4.3(a) above.
(b) For purposes of this Agreement, “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Laws" means all federalResponse, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awardsCompensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non‑friable; (vi) polychlorinated biphenyls; (vii) radon gas; (viii) any radioactive material, including any “source material”, “special nuclear material” or “byproduct material”, as now or hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of which pertain on the Property, (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or materialswaste or Hazardous Materials into the environment (including, environmental matters without limitation, ambient air, surface water, ground water or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under land or are issued pursuant to Environmental Lawssoil).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement and as an inducement to Purchaser to enter into this Agreement, Seller represents and warrants the following to Purchaser:
(a) All leases (whether written or oral) relating to the Property are in full force and effect; no security or damage deposits exist, other than as specifically identified in any Exhibit attached hereto; and neither the Seller nor any tenant is in default, other than as specifically identified in any Exhibit attached hereto.
(b) Seller has 136 full-time active employees the lawful right to enter into this Agreement and to cause the transactions contemplated herein to be carried out.
(c) The Property conforms to all applicable building codes, environmental laws and regulations, zoning ordinances and other restrictions, including (but not limited to) the requirements of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
(d) The plumbing, heating, water heaters, air conditioning units, pipes, gas lines and water and sewer lines are all in good working order and in compliance with all applicable government laws and regulations.
(e) All water, sewer, gas, electric, telephone and drainage facilities and all other utilities required by law or in the normal use and operation of the BusinessProperty are and at the time of Closing will be connected to the Property with valid permits and are and the time of Closing will be adequate to service the Purchaser’s intended use and to permit full compliance with all requirements of law and normal usage by the Purchaser, its tenants, licensees and 31 part-time employeesinvitees.
(viif) The Seller has obtained all licenses, permits, easements and rights of way, including proof of dedication, required from all governmental authorities having jurisdiction over the Property or from private parties for the use and operation of the Property and to insure vehicular and pedestrian ingress and egress to and from the Property.
(g) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth disclosed to Purchaser all matters that might have a material adverse effect on the Disclosure Scheduleownership, there is no litigation operation or proceeding, in law or in equity, maintenance of the Property and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, latent defects therein known to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser Buyer that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organizedpartnership, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedCalifornia.
(b) Except as set forth in Seller has the Disclosure Schedule, authority to execute this Contract and to perform its obligations under this Contract. The person executing this Contract on behalf of Seller holds good and marketable title is duly authorized to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentdo so.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "To Seller's Ancillary Documents"). This Agreement has beenknowledge, other than as listed on EXHIBIT E attached hereto and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes made a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 part hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andpending or, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of noticeovertly threatened litigation, or bothother process, private or regulatory, affecting the happening of Property or any further event or conditionentity comprising Seller that, if decided adversely, would become have a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed Material Adverse Effect on the Disclosure Schedule, there are no commissions use or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare Property or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(pd) There are no material claims pending or, to the best of To Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions requirements of all Executive Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the "ORDER") and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury ("OFAC") and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutesother rules, regulations, ordinanceslegislation, rulesor orders are collectively called, the "ORDERS").
(e) To Seller's knowledge, neither Seller nor any beneficial owner of Seller nor any Person who provides loans to Seller:
(i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations and policiesof OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as, all court orders and decrees and arbitration awardsthe "LISTS");
(ii) is an individual, and the common corporation, partnership, limited liability company, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity (collectively, a "PERSON") who has been determined by competent authority to be a Person with whom a U.S. Person is prohibited from transacting business, whether such prohibition arises under U.S. law, regulation, executive orders or any lists published by the United States Department of Commerce, the United States Department of Treasury or the United States Department of State including any agency or office thereof;
(iii) is owned or controlled by, or acts for or on behalf of, any Person on the Lists or any other Person who has been determined by competent authority to be a Person with whom a U.S. Person is prohibited from transacting business, whether such prohibition arises under U.S. law, regulation, executive orders or any lists published by the United States Department of Commerce, the United States Department of Treasury or the United States Department of State including any agency or office thereof; or
(iv) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities, any crimes which pertain in the United States would be predicate crimes to hazardous substances money laundering, or materials, environmental matters or contamination any violation of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Anti-Money Laundering Laws.
Appears in 1 contract
Seller’s Representations and Warranties. In addition to the limited warranties of title contained in Section 8 hereof, Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Scheduleits knowledge:
(a) A. Seller is a limited partnership in commendamhereby conveys with the Property, duly organized, validly existing any and in good standing, under all water rights associated with the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased AssetsProperty, free and clear of all mortgagesany encumbrances, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted ExceptionsEncumbrances, and all items related rights granted by the State of EquipmentWashington or other authoritative governmental body.
B. Seller represents that all such water rights being conveyed are in good standing in accordance with all required terms and conditions;
C. Seller has or will have at Closing full power and legal right and ability to convey, Inventory assign and transfer to Purchaser these water rights. At Closing, Seller shall provide a resolution of its Company(ies) or entities authorizing Seller to enter into this transaction and indicating that this transaction is fully binding upon the Seller and its entities.
D. The authorized places of use, the points of withdrawal, and the piping and equipment associated with or used in connection with these water rights are all located within the boundaries of the Property or areas approved by the water permits issued by the Washington State Department of Ecology;
E. As of Execution Date, the Improvements, including all irrigation and other personal property operating systems, that are part of the Property, are in working order;
F. Seller has not received notice that it is in violation of any of the water rights conveyed hereby, that any Improvements, Personal Property or Fixtures have been fully paid fordamaged so as to render them inoperable, or that it is a party to any law suit or order of a court or governmental body that would materially interfere with its ability to consummate the Purchase and Sale Agreement;
G. Seller has not stored or deposited any substance classified as a hazardous substance as defined under RCW 70.105D.020(7) in violation of any local, state, or federal statute, regulation or order or in a manner inconsistent with the instructions from the manufacturer pertaining to such substance and has no knowledge that any other person has stored or deposited same in violation of any local, state, or federal statute, regulation or order or in a manner inconsistent with the instructions from the manufacturer pertaining to such substance;
H. There is no pending condemnation or similar proceeding affecting the Property or any portion thereof, and Seller has not received notice that any such proceeding is contemplated;
I. Seller has complied in all material respects with legal requirements of its ownership and use of the Property.
J. As to the extent Contracts, (i) the Contracts are the only Contracts that normal business practice permitsaffect or otherwise give rights or possessory interests in the Property other than contracts that may be terminated without penalty or obligation to Purchaser and upon thirty (30) days notice, except those items identified on the Disclosure Schedule which are subject to installment payments (ii) Seller has not received notice of any defense, set-off, claim or leases and counterclaim, suspension or revocation affecting said Contracts, or any of them; (iii) with respect to any Contract requiring a payment or other form of performance by the other party to said Contract, there has been no prepayment or advance performance thereunder; and (iv) the Contracts are not in default;
K. Closing will not violate any law or court or governmental order to which there the Property or Seller is subject or the terms of any Contract;
L. There are no installments due which persons, other than Seller and persons that are delinquent.parties to the Contracts, or Purchaser, in possession of the Property;
(cM. Seller(s) Seller has full partnership power and authority to enter into and perform who are not individuals, are duly authorized joint ventures, corporations or trusts in good standing under (x) this Washington law;
N. This Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, ’s performance hereof have been duly authorized by all necessary partnership action(s)the Owners and Manager, and duly executed and delivered by general partners of Seller so authorized. respectively;
O. This Agreement constitutes a valid and legally is binding obligation of Seller, enforceable against upon Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). terms;
P. Seller is engaged in commercial agriculture; Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as otherwise specifically provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in Purchaser accepts the operation of the Business, Purchased Assets and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equitytitle thereto AS IS and WITH ALL FAULTS, and there are no proceedings implied warranties or governmental investigations before any commission or other administrative authorityrepresentations by Seller respecting same. For purposes hereof, pendingSeller’s knowledge means the actual current knowledge of Jxxxx X. Xxxxxxxx, orPresident and Txx Xxxxxx, Vice President and Chief Financial Officer of P. X. Xxxxxxxx Company, it being Seller’s representation to Purchaser that P. X. Xxxxxxxx Company is the best manager of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect and whose officers are actively engaged in the operations and day to the consummation day management of the transaction contemplated herebyProperty. Where a representation or warranty refers to notice, it shall mean receipt of written notice from the governmental agency or the use contract party. If Purchaser has knowledge that any representation or warranty of the Purchased Assets Seller contained herein is not true at Closing, fails to give notice thereof to Seller prior to Closing Date while Purchaser has an opportunity to terminate this Agreement and thereafter Closes, that representation or warranty shall have no further force and effect. Representations shall survive Closing by twelve (whether used 12) months and shall thereafter be without legal force and effect unless suit is brought by Purchaser after the Closing or by Seller prior thereto)respecting a breach thereof within such twelve (12) month period, or which would restrict or interfere with Seller's ability but this limitation shall not apply to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used warranty contained in this Agreement, "Environmental Laws" means all federalor to any false representation made in this Agreement, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination with actual knowledge of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawsits falsity. Each representation shall be true as of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Taggares Agriculture Corp.)
Seller’s Representations and Warranties. Seller hereby warrants and represents to Buyer, as of the Effective Date and warrants to Purchaser thatas of the Closing Date, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) The execution, delivery and performance by Seller of its obligations under this Agreement will not conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulations, judgment, decree or order by which the Seller is a limited partnership in commendambound, duly organized, validly existing and in good standing, under the laws or by any of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances provisions of any kind contract to which the Seller is bound, or nature other than by the Permitted Exceptionsorganic agreements establishing and regulating the Seller’s business affairs, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of consummate the transactions contemplated by this Agreement, and all consents and approvals necessary therefor have been obtained.
(b) Seller is the legal and equitable owner of fee simple title to the Property and has the right to convey such fee simple title by Deed to Buyer on the Closing Date free and clear of all options, rights, covenants, easements, liens and other rights in favor of third parties, other than the Permitted Exceptions. The sale transaction contemplated Property is not subject to any: (i) outstanding agreements of sale, options, liens, or other rights of third parties to acquire any interest(s) therein, except as set forth in the Preliminary Report; (ii) ground leases or other leases or tenancies (other than the lease of the entire Property to Zhone Technologies, Inc. which will be terminated on the Closing), including but not limited to equipment or signage leases, or other agreements relating to the ownership of the Property; (iii) real estate, management, supply, promotional, operating, maintenance, security or other service contracts, except such contracts made available to Buyer for review pursuant to Section 7 hereof; (iv) any declarations of covenants, conditions and restrictions, or similar encumbrances, affecting the Property, except as provided in the Preliminary Report; or (v) other encumbrance(s) other than as provided in the Preliminary Report. Seller shall not voluntarily encumber or allow the Property to be encumbered by this Agreement any of the foregoing without Buyer’s consent, which may be granted or withheld in Buyer’s sole discretion.
(c) Seller does not hold any approvals, licenses, certificates, or permits to own, occupy and/or maintain the Property, nor is being Seller aware that any such approvals, etc., are necessary for Seller’s current occupancy of the Property, except such documents made in connection with the winding-up of Seller as contemplated under available to Buyer for review pursuant to Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 19807 hereof.
(d) No consent, authorization, order or approval ofwork has been done on the Property, or filing materials or registration withutilities furnished, that have not been fully paid for, and there is no claim against any governmental authority portion of the Property or Seller for or on account of work done, materials furnished or utilities supplied to the Property. There are no payback agreements, revenue bonds, utility debt service expenses or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and charges or expenses applicable to the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsProperty.
(e) Neither To the execution best of Seller’s knowledge: (i) there are no violations, or threatened or pending violations, of any laws, statutes, ordinances, rules or regulations with respect to the Property open, noticed or existing; and delivery of this Agreement and Seller's Ancillary Documents by Seller(ii) no litigation, nor condemnation proceedings, eminent domain proceedings or similar actions or proceedings are now pending or threatened against the consummation by Seller of the transactions herein contemplatedProperty, will conflict with or which could result in a breach any judgment lien against the Property; nor does Seller know of or have reasonable grounds to know of any of the termsbasis for any such violation, conditions action or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardclaim.
(f) There are no unpaid delinquent: (i) ad valorem real estate taxes or assessments; or (ii) assessments for public improvements; pertaining to the Property. To the best of Seller's books’s knowledge: (i) there are no public plans or proposals for changes in road grade, accounts access or other municipal improvements which would affect the Property or result in any assessment; (ii) no ordinance authorizing improvements, the cost of which might be assessed against Buyer or the Property, is pending; and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions (iii) there is no appellate tax proceeding pending for the reduction or increase of the assessed real estate tax valuation to which Seller is the Property or has been a party are properly reflected thereinany portion thereof.
(g) Complete The Property has direct legal and accurate copies perpetual rights of the audited balance sheets, statements of income access to and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect Property to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance one or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller more public roads and any of its customers, suppliers or key employees.
amounts due for improvements (k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied construction of access roads) have either been paid by Seller or shall be paid by Seller at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(nh) With respect Utility services for water, sanitary and storm sewers, natural gas, electricity, and telephone and telecommunications services are available either at the Property or in the vicinity of the Property in locations wherein the Buyer can connect to employees of Seller:such existing utility infrastructures and extend the same to the Property at its own expense through perpetual private easements that benefit the Property or through public rights-of-way.
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to To the best of Seller's ’s knowledge, threatened against without independent investigation or directly affecting Seller;
inquiry, and except as provided for in the environmental report(s) made available to Buyer pursuant to Section 7 hereof: (i) there are no underground storage tanks on the Property, (ii) the Property has never been used as a landfill or garbage dump, and (iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings hazardous, toxic or governmental investigations before any commission or other administrative authorityinfectious wastes, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.materials present on the Property in quantities or
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Zhone Technologies Inc)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(ci) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(dii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iii) there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property, except for the litigation described on Schedule “B” attached hereto (the “Existing Litigation”),
(iv) Seller has no knowledge of, and has not received any written notice of, any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(v) Seller has no knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding, any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements,
(vi) the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property, and there are no other such agreements affecting the Property,
(vii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(viii) except for those tenants in possession of the Property under written leases for space in the Property, without limitation: employment and employment-related agreements; covenants not to compete; loan agreementsas shown on the rent roll attached hereto as Exhibit “F” (the “Rent Roll”), notesthere are no parties in possession of, or claiming any possession to, any portion of the Property,
(ix) at Closing there will be no unpaid bills or claims in connection with any repair of the Property by or on behalf of Seller that could result in the filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and security agreements (as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other periods of free or discounted rent have been given other than notes, loan agreements and related security documents that are being satisfied at or prior those reflected on such Rent Roll,
(xi) the financial statements delivered by Seller to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred Purchaser pursuant to in this paragraph 4.3(k)Section 4.1 hereof, and all other contracts information delivered by Seller to Purchaser pursuant to Section 4.1 hereof, are true, correct and complete in all material respects,
(xii) Seller has no knowledge, and has received no notice, regarding any environmental contamination on, at, under, from or instruments adjacent to the Property, except as may be set forth on Schedule “C” attached hereto,
(xiii) Seller has no knowledge of the presence of any asbestos or asbestos containing materials or lead-based paint at or on the Property,
(xiv) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, except those as to which Seller has completed remedial action which has been formally accepted as sufficient by such authority or insurer,
(xv) there are no employment agreements of any kind to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xvi) Seller has no knowledge of any material defects in the drainage systems, foundations, roofs, walls, superstructures, plumbing, air conditioning and heating equipment, electrical wiring, boilers, hot water heaters or other portions of the Property, and to the best of Seller’s knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof,
(xvii) to the best of Seller’s knowledge, the Improvements are free from the presence or suspected presence of any form of mold, including those producing mycotoxins, specifically including, but not limited to, Aspergillus, Penicillium, and Stachybotrys,
(xviii) to the best of Seller’s knowledge, there are no and there never have been any underground storage tanks located on or under the Property, except as disclosed in the Environmental Documents, there are no conditions on, at or relating to the Property which are in non-compliance with “Environmental Requirements” (as defined below), and there are no “Hazardous Materials” (as defined below) on, at, under, or migrating from the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xix) Seller has obtained all necessary certificates, licenses and other approvals, governmental and otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which are in full force and binding upon effect as of the parties theretodate hereof and not subject to revocation, suspension, forfeiture or modification; and additionally, the Property is legally compliant and conforming with all applicable zoning laws, rules and regulations,
(xx) Seller is in compliance with the requirements of Executive Order No. No default 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Executive Order and such other rules, regulations, legislation, or orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by Seller has occurred thereunder and, OFAC pursuant to the best Executive Order and/or on any other list of Seller's knowledgeterrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders; or (c) is owned or controlled by, no default or acts for or on behalf of, any person on the OFAC Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders, or any other contracting parties has occurred thereunder. No eventanti-terrorism or anti-money laundering laws or regulations, occurrence or condition exists whichincluding, with the lapse of timewithout limitation, the giving of noticeBank Secrecy Act, or bothas amended, or the happening Money Laundering Control Act of any further event or condition1986, would become as amended,
(xxi) The Property is a default by Seller thereunder. Seller has given (or will give, during storage warehouse facility and is classified as a Class 4B Industrial Property on the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) tax assessment rolls of the Disclosure Scheduleapplicable town and county in New Jersey where the Property is located,
(xxii) There are no uncured violations of the Industrial Site Recovery Act, N.J.S.A. 13; 1k-6 et seq. (“ISRA”) related to the Property, the current use of the Property is classified under NAICS Code 531130 and such use does not render the transaction contemplated by this Agreement subject to ISRA, and.
(xxiii) There are presently no, and as of the Closing Date shall be no, property management agreements affecting the Property. Seller shall indemnify deliver a certificate to Purchaser at Closing recertifying all of the foregoing representations and warranties to Purchaser as required under Section 1.2 hereofof the Closing Date, against loss, cost or liability under any contract, lease or agreement not disclosed such that all such representations and warranties shall be deemed made to Producer Purchaser as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under of the terms Closing Date. All of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to foregoing representations and warranties expressly shall survive the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(mb) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date For purposes of this Agreement, Seller has 136 full-time active employees “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the operation of Resource Conservation and Recovery Act (42 U.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the BusinessToxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and 31 part-time employees.
asbestos containing materials, in any form, whether friable or non‑friable; (vi) polychlorinated biphenyls; (vii) Seller has no retirementradon gas; (viii) any radioactive material, pensionincluding any “source material”, profit sharing“special nuclear material” or “byproduct material”, employee welfare as now or employee benefit plans for hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of its employees.
(o) Except as set forth which on the Disclosure ScheduleProperty, there (A) requires reporting, investigation or remediation under Environmental Requirements; (B) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (C) which, if it emanated or migrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, decrees or regulatory agency guidance, now or hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the cities, or any other political subdivisions in which the Property is no litigation or proceeding, in law or in equitylocated, and there are no proceedings any other political subdivision, agency or governmental investigations before any commission or other administrative authority, pending, or, to instrumentality exercising jurisdiction over the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation owner of the transaction contemplated herebyProperty, the Property, or the use of the Purchased Assets (whether used by Purchaser after Property, relating to pollution, the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, protection or regulation ofof human health, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnelnatural resources, or the Business are subject environment, or to which itthe emission, itselfdischarge, is subject)release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, lawsambient air, statutes and regulations relating to equal employment opportunitiesindoor air, fair employment practicessurface water, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleground water or land or soil).
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to PNC as of the best of Seller's knowledge date hereof and except the Commencement Date as set forth in the Disclosure Schedulefollows:
(a) the execution, delivery and performance of this Agreement, the Xxxx of Sale and the Lease Documents to which Seller is a limited partnership in commendam, party are duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified authorized on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation part of Seller, and upon due execution thereof by the parties thereto, each of such documents shall constitute valid obligations binding upon and enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement as such enforceability may be affected limited by laws relating to applicable bankruptcy, reorganization, insolvency and creditors' other similar laws affecting the rights and remedies of creditors generally and by general principles of equity;
(b) neither the availability execution by Seller of injunctive reliefthis Agreement, specific the Xxxx of Sale or any of the Lease Documents to which Seller is a party, nor the due performance thereof by Seller, will result in any breach of, or constitute a default under, or violation of, Seller's certificate of formation, limited liability company agreement, or any material agreement to which Seller is a party or by which Seller is bound and other equitable remedies). Except as contemplated under Section 6.1 hereofthat relates to the Equipment, there is no nor will any of the same violate any material law, rule, regulation or ordinance order by which Seller is bound and that relates to the Equipment;
(c) Seller is duly formed, validly existing and in good standing in its state of formation and is duly qualified as a foreign limited liability company in each other jurisdiction where the Equipment is located;
(d) Seller has and is transferring to PNC good, valid and marketable title to the Equipment free and clear of all liens, encumbrances and claims of any kind or description other than Permitted Liens (for purposes of this Section 5, “Permitted Liens” means (i) any liens, encumbrances or claims for taxes not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; (ii) any liens created by the Lease Documents (other than the Project Documents (as defined below)); (iii) any liens, encumbrances or claims arising in the ordinary course of business by operation of law (including mechanics’ and materialmen’s liens) with respect to a liability that is not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; and (iv) zoning, planning and other similar encumbrances affecting the Equipment which do not in any case materially detract from the value of the Equipment;
(e) the agreements listed on Exhibit #3 constitute a true, accurate and complete list of all material contracts with respect to the Equipment (as supplemented from time to time in connection with the Lease Agreement, and as may be amended, amended and restated, modified or supplemented from time to time, and including any replacement or supplementary agreements thereof or thereto, the “Project Documents”);
(f) each Project Document to which Seller is a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, and has not been amended or modified except as noted on Exhibit #3, and with respect to each such agreement, Seller is not, and to Seller’s knowledge, no other party thereto is, in default thereunder;
(g) each Project Document to which Seller is not a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, has not been amended or modified and, to the knowledge of Seller, no party to any of such agreements is in default thereunder;
(h) Seller has provided to PNC true, correct and complete copies of each Project Document and has received all third party consents and approvals necessary to permit the collateral assignment to PNC contemplated by the Lease Documents, as well as the potential direct assignment to PNC upon the election of the Return Option or following the occurrence and during the continuance of a Default (each as defined in the Lease Agreement) at the end of the Lease Term;
(i) there are no warranties or indemnities applicable to the Equipment that were provided by any manufacturer, supplier or installer of any of the Equipment other than those included in the Project Documents and those separate warranties listed on Exhibit #4 hereto (all such warranties and indemnities, the “Warranties”);
(j) the installation and operation of the Equipment and development, construction and operation of the system comprising the Equipment is and has been in material compliance with all Applicable Laws, including environmental laws, and all material franchise, license, permit, approval, notification, certification, registration, authorization and qualification required by any governmental body authority (“Governmental Approvals”) required as of the effective date of the Lease Agreement to develop, construct and operate the system comprising the Equipment have been duly obtained, are in full force and effect, are final and all periods to administratively or agency prohibiting Sellerjudicially appeal such Governmental Approvals have expired;
(k) Lessee is either not subject to or is exempt from regulation (i) as a "public utility" or a "holding company" under the Federal Power Act ("FPA") and the Public Utility Holding Company Act ("PUHCA") and FERC's executionregulations thereunder, and (ii) as a "public utility," "electric utility," "electric corporation," or a "holding company" or similar terms under applicable laws or regulations of each state where the Equipment is located, and, solely as the result of the execution and delivery and of the Lease Documents or the consummation or performance of the transactions contemplated by this Agreementthereby, Lessor will not become subject to regulation under any of the foregoing laws or regulations. The sale transaction contemplated by this Agreement Lessee is being made in connection with not subject to regulation under the winding-up Investment Company Act of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.1940; and
(dA) No consentSeller has timely filed or caused to be filed all tax returns and reports required to have been filed by it and has paid or caused to be paid all taxes, authorizationassessments and governmental charges assessed or imposed that are required to have been paid by it, order and (B) Seller has not applied to the Internal Revenue Service for a private letter ruling with respect to the Equipment, the Project Documents or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documentsthe Lease Agreement.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, corporation duly organized, validly existing and and, except as set forth in Exhibit 6.1(a), in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power Connecticut and authority is duly qualified or licensed as a foreign corporation authorized to conduct do business in each jurisdiction in which the Business as character of the Business is properties and assets now being conductedowned or held by it requires it to be so licensed or qualified, except where the failure to obtain such license or qualification would not have an adverse effect on the Assets or the Machine Business.
(b) Except as set forth in Seller has full right, power, legal capacity and authority to execute, deliver and perform this Agreement and all documents and instruments referred to herein or contemplated hereby and to consummate the Disclosure Scheduletransactions contemplated herein and thereby, including the full right, power, legal capacity and authority to sell, assign and transfer the Assets. This Agreement has been duly executed and delivered by Seller holds good and marketable title to and, upon obtaining the Purchased Assetsforegoing approvals, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionswill constitute, and all items documents and instruments referred to herein or contemplated hereby when duly executed and delivered by Seller will constitute, legal, valid and binding obligations of Equipment, Inventory Seller enforceable in accordance with their respective terms and other personal property have been fully paid for, to the extent that normal business practice permitsconditions, except those items identified on as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the Disclosure Schedule which are subject to installment payments enforcement of creditors' rights generally and by general principles of equity (whether applied in a proceeding at law or leases and with respect to which there are no installments due which are delinquentin equity).
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(sExcept for the consents specified in Exhibit 6.1(c), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Sellerno approval, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and consent or other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, action of or filing or registration withwith any court, any administrative agency, governmental authority or other person third party is required for Seller's execution and the execution, delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Arrhythmia Research Technology Inc /De/)
Seller’s Representations and Warranties. Seller represents 20.1 The Sellers represent and warrants to Purchaser that, warrant to the best Buyers as of Seller's knowledge the date hereof and except as set forth in on the Disclosure ScheduleDelivery Date, the Preposition Date and on the Balance Payment Date:
(a) Seller is the Sellers:
(i) are a limited partnership in commendamcorporation, duly organizedincorporated, validly existing and in good standing, standing under the laws of Liberia and are not a Restricted Person (as defined in the State of Louisiana. Seller has all necessary Bareboat Charter);
(ii) have the power to own their assets and authority to conduct the Business carry on their business as the Business that business is now being conducted.;
(biii) Except as set forth in have the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenperform, and Seller's Ancillary Documents will be, duly authorized by have taken all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except action to authorize the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of of, this Agreement and the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and;
(iv) no occupant under a lease are not owned or concession agreement has received any notice from any source to controlled by or acting directly or indirectly on behalf of or for the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss benefit of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance chargesRestricted Person;
(iiv) there is no request for union representationdo not own or control a Restricted Person;
(vi) do not have a Restricted Person serving as a director, labor strike, dispute, slowdown or stoppage actually pending officer or, to the best of Seller's its knowledge, threatened employee; and
(vii) are not a party to any other agreement whereby it agrees to sell or otherwise transfer legal title to the Vessel;
(f) neither the Sellers nor any of their directors, officers or employees or any person acting on their behalf has received notice or are aware of any claim, action, suit, proceeding or investigation against any of them or the Vessel with respect to Sanctions by a Sanctions Authority;
(g) no proceeds of the Purchase Price of the Vessel shall be made available, directly affecting Selleror indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by or in breach of Sanctions;
(h) on the Delivery Date and immediately prior to delivery of the Vessel to the Buyers, the Sellers are the sole legal and beneficiary owner of the Vessel, and the Vessel:
(i) is in a good and safe condition;
(ii) is classed with the Classification Society at the highest classification available for vessels of its type and is free of all recommendations or conditions; and
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending has all trading and no claims therefor exist;class certificates valid for at least six (6) months; and
(ivi) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans Callback Form and similar plans and payment of accrued salaries or wages and vacation pay all information (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, including without limitation, lawsthe identification documents, statutes authorisations and regulations relating to equal employment opportunitiesspecimen signatures) provided thereunder remains true, fair employment practices, unfair labor practices, terms of employment, occupational health accurate and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleup-to-date.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Memorandum of Agreement for Sale and Purchase of Ships
Seller’s Representations and Warranties. Seller represents represents, warrants and warrants covenants to Purchaser Buyer as of the Effective Date and as of the Closing that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, standing under the laws of the State of Louisiana. Seller New York and has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership requisite power and authority to enter into and perform under (x) carry out this Agreement and according to its terms.
(yb) all documents and instruments to be executed by Seller pursuant to Without limiting in any way the provisions of Section 11 hereof, this Agreement (collectivelyhas been duly authorized, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement and constitutes a valid legal and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement as may be affected limited by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance bankruptcy and other equitable remedies). Except laws affecting creditors’ rights generally.
(c) Seller is not a “foreign person” as contemplated under that term is defined in Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance 1445 of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980Internal Revenue Code.
(d) No consentThe execution or delivery or the performance by Seller of this Agreement will not conflict with, authorization, order or approval will not result in a breach of, or filing will not constitute a default under, (i) Seller’s organizational or registration withoperating documents, (ii) any governmental authority judgment, statute, rule, order, decree, writ, injunction or regulation of any court or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation governmental authority, or (iii) any agreement or instrument by which Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documentsor its properties may be bound.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation There are no employees employed by Seller of that would be binding upon the transactions herein contemplated, will conflict with Buyer or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardProperty after Closing.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance Seller has not conveyed or transferred any development and/or air rights associated with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected thereinthe Property.
(g) Complete and accurate copies of There are no service contracts at the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for Property which would be binding upon Buyer or the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsProperty after Closing.
(h) Complete and accurate copies of To Seller’s knowledge, there are no pending condemnation proceedings relating to the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedProperty.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there There are no commissions or referral fees pending tax certiorari appeals relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing DateProperty.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Real Property Purchase Agreement (Akoustis Technologies, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulewarrants:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaMichigan. Seller has taken all necessary power and authority action to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of authorize the transactions contemplated by this Agreement and Seller's Ancillary Documents’s execution and delivery of all documents required herein, and Seller’s performance hereunder and thereunder has been duly authorized.
(b) Seller has not actually received written notice of, nor does Seller have any knowledge of, any litigation, investigation or similar proceeding pending, contemplated or threatened against Seller or the Property.
(c) Seller is not a Foreign Person as such term is defined under the Internal Revenue Code Section 1445.
(d) To Seller’s knowledge, there are no existing, pending, or anticipated condemnation or similar proceedings against or involving the Property.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerSeller has not entered into any unrecorded leases, nor the consummation by Seller of the transactions herein contemplatedoptions, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentscontracts, or rights of any statute or administrative regulationfirst refusal, or of any order, writ, injunction, judgment or decree of any court or any governmental authority or of any arbitration awardwith respect to the Property.
(f) To Seller's books’s knowledge and except as otherwise disclosed in the Seller’s Documents, accounts and records are, and have been, maintained the Property is not in Seller's usual, regular and ordinary mannerviolation, in accordance with prudent business practices and generally accepted accounting practicesany material respect, and all material transactions of any federal, state or local law, ordinance, order or other regulation relating to which Seller “Hazardous Material” (as defined below). As used in this Section, the term “Hazardous Material” means any hazardous, flammable, explosive, corrosive, or toxic chemical, material, or substance that is regulated under any federal, state, or has been a party are properly reflected thereinlocal law, regulation, ordinance, order, or other regulation concerning public health, safety or the environment.
(g) Complete and accurate copies The Property consists of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsone contiguous parcel containing 17.96 acres or more.
(h) Complete and accurate copies No person other than Purchaser shall be entitled to possession of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of Property on the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedClosing.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, known violations that Purchaser would be obligated to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or servicesrepair.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Universal Truckload Services, Inc.)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser Buyer as of the date hereof, and the Closing Date that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, Delaware corporation duly organized, validly existing existing, and in good standing, standing under the laws of the State state of Louisiana. Delaware, and is duly qualified to carry on its business in those states where it is required to do so;
(b) Subject to the approval by Seller's parent's (United Energy plc) shareholders, Seller has all necessary requisite power and authority to conduct the Business carry on its business as the Business is now being presently conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all the other documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenagreements contemplated hereby, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated perform it obligations under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents the other documents and the agreements contemplated hereby. The consummation by Seller of the transactions contemplated by this Agreement will not violate, nor be in conflict with, any provision of its governing documents or any agreement or instrument to which it is a party or by which it is bound (except any provision contained in agreements customary in the oil and gas industry relating to (i) the preferential right to purchase all or any portion of the Assets; (ii) required consents to transfer and related provisions; (iii) maintenance of uniform interest provisions; and (iv) any other third-party approvals or consents contemplated herein), or any judgment, decree, order, statute, rule, or regulation applicable to Seller's Ancillary Documents.;
(c) This Agreement, and all documents and instruments required hereunder to be executed and delivered by Seller at Closing, constitute legal, valid and binding obligations of Seller in accordance with its respective terms, subject to applicable bankruptcy and other similar laws of general application with respect to creditors;
(d) There are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by, or to the actual knowledge of Seller threatened against Seller;
(e) Neither the execution The execution, delivery and delivery performance of this Agreement and Seller's Ancillary Documents the transaction contemplated hereunder have been duly and validly authorized by Sellerall requisite authorizing action, nor corporate, partnership or otherwise, on the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions part of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.; and
(f) Seller's booksSeller has not incurred any obligation or liability, accounts and records arecontingent or otherwise, for brokers' or finders' fees in connection with this Agreement, and have beenthe transaction provided herein, maintained in which will be the responsibility of Buyer, any such obligation or liability that might exist shall be the sole obligation of Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.;
(g) Complete and accurate copies There are no claims, demands, actions, suits, proceedings (including condemnation, expropriation, or forfeiture proceedings) or governmental investigations or inquiries pending, or to the knowledge of the audited balance sheetsSeller threatened, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of against Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
or any Asset (i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required seeking to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to prevent the consummation of the transaction transactions contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing ii) which, singly or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to aggregate, would have a material adverse effect the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsAssets.
Appears in 1 contract
Seller’s Representations and Warranties. 4.1 Each Individual Seller (as to itself only and severally and not jointly and severally) represents and warrants to Purchaser Buyer (as of the Agreement Date and as of the Effective Date) that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller (i) is a limited partnership in commendam, duly organized, organized and validly existing and in good standing, under the laws of the State its jurisdiction of Louisiana. Seller organization or incorporation, (ii) is in good standing under such laws and (iii) has all necessary full power and authority to conduct execute, deliver and perform its obligations under the Business as the Business Transaction Documents to which it is now being conductedor will become a party.
(b) Except as set forth Seller's execution, delivery, and performance of the Transaction Documents to which it is or will become a party has not resulted and will not result in the Disclosure Schedulea breach of any provision of (i) Seller's organizational documents, (ii) any statute, law, writ, order, rule or regulation of any Governmental Authority applicable to Seller, (iii) any judgment, injunction, decree or determination applicable to Seller holds good and marketable title to the Purchased Assetsor (iv) any contract, free and clear of all mortgagesindenture, optionsmortgage, liensloan agreement, chargesnote, easements, agreements, claims, rights, restrictions lease or other encumbrances of any kind instrument by which Seller may be bound or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there any of the assets of Seller are no installments due which are delinquentsubject.
(ci) The Transaction Documents to which Seller has full partnership power is a party (A) have been duly and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectivelyvalidly authorized, "Seller's Ancillary Documents"). This Agreement has beenexecuted, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally (B) are the legal, valid, and binding obligation obligations of Seller, enforceable against Seller in accordance with its terms (their respective terms, except to the extent that enforcement such enforceability against Seller may be affected limited by laws relating to bankruptcy, reorganizationinsolvency, insolvency and or other similar laws of general applicability affecting the enforcement of creditors' rights generally and by the availability of injunctive relief, specific performance and other court's discretion in relation to equitable remedies). Except as contemplated under Section 6.1 hereof; and
(ii) No notice to, there registration with, consent or approval of, or any other action by, any relevant Governmental Authority or other Entity (other than the Required Consents) is no lawor will be required for Seller to execute, ruledeliver, regulation and perform its obligations under, the Transaction Documents to which Seller is or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980will become a party.
(d) No consentTo the same extent that Seller received such ownership and title from the Immediate Prior Sellers, authorizationSeller is the sole legal and beneficial owner of and has good title to the Transferred Rights, order free and clear of any Encumbrance. The Transferred Rights are not subject to any prior sale, transfer, assignment or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation participation by Seller of the transactions contemplated or any agreement by this Agreement and Seller's Ancillary DocumentsSeller to assign, convey, transfer or participate, in whole or in part.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party No proceedings are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; pending against Seller or (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against Seller before any relevant Governmental Authority that, in the aggregate, will materially and adversely affect (A) the Transferred Rights or directly affecting Seller;(B) any action taken or to be taken by Seller under this Agreement.
(iiif) no grievance or arbitration proceeding arising out Based solely on the representations and warranties made to Seller by the Immediate Prior Seller in the Predecessor Transfer Agreements, the principal amounts of or under collective bargaining agreements is pending the Loans outstanding and no claims therefor exist;the Commitments, as of the Agreement Date, and all permanent commitment reductions, permanent repayments of principal and all amendment, consent, waiver and other similar non-ordinary course fees received by Seller in connection with the Transferred Rights, are accurately stated in Schedule 1.
(ivg) Based solely on the employment representations and warranties made to Seller by the Immediate Prior Sellers in the Predecessor Transfer Agreements, except for the Commitments, if any, there is no funding obligation of each any kind (whether fixed, contingent, conditional, or otherwise) in respect of the Seller's employees Transferred Rights or the Assumed Obligations (including any obligation to make advances or to purchase participations in letters of credit under any Credit Documents or any obligation relating to any currency or interest rate swap, hedge, or similar arrangement) that Seller or Buyer is terminable at or shall be required to pay or otherwise perform that Seller has not paid or otherwise performed in full. Based solely on the representations and warranties made to Seller by the Immediate Prior Sellers in the Predecessor Transfer Agreements, the Unfunded Commitments, if any, as of the Effective Date are accurately stated in Schedule 1.
(h) Seller has not engaged in any acts or conduct or made any omissions with respect to Borrower or any Obligor that will without cost result in Buyer receiving proportionately less in payments or distributions under, or less favorable treatment (including the timing of payments or distributions) for, the Transferred Rights than is received by other Lenders holding loans or commitments of the same tranche as the Loans and Commitments.
(i) Seller has performed, and has complied with, all obligations required to be performed or complied with by it under the Seller except for payments required Credit Documents and is not in breach of any provisions of the Credit Documents.
(j) No broker, finder or other Entity acting under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries authority is entitled to any broker's commission or wages and vacation pay (other fee in connection with the transactions contemplated by this Agreement for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to Buyer could be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Sellerresponsible.
(vk) The Disclosure Schedule contains a true and complete list Seller has not breached any of all employees who are employed by the Seller as of the date hereofits representations, and said list correctly reflects their salarieswarranties, wagesobligations, other compensation (other than benefits agreements, or covenants under the employee welfare, benefit and similar plans), dates of employment and positionsPredecessor Transfer Agreements.
(vil) As Except as set forth in Schedule 1, Seller (i) is not and has never been (A) an "insider" of Borrower or any Obligor (as "insider" is defined in Bankruptcy Code Section 101(31)) or (B) an Affiliate of Borrower or any Obligor, and (ii) is not, and has not been, a member of any official or unofficial committee relating to any Obligor.
(m) Seller does not hold any funds or property of or owe any amounts or property to the Borrower or any Obligor and has not effected or received the benefit of any setoff against the Borrower or any Obligor on account of the date of this AgreementTransferred Rights.
(n) Except as set forth in Schedule 1, Seller has 136 full-time active employees in not received any written notice other than those publicly available that (i) any payment or other transfer made to or for the operation account of Seller from or on account of Borrower or any Obligor under the BusinessTransferred Rights is or may be void or voidable as an actual or constructive fraudulent transfer or as a preferential transfer or (ii) the Transferred Rights, and 31 part-time employees.
(vii) Seller has no retirementor any portion of them, pensionare void, profit sharingvoidable, employee welfare unenforceable or employee benefit plans for subject to any of its employeesImpairment.
(o) Except as set forth on Seller acknowledges that the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to consideration paid under this Agreement for the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation purchase of the transaction contemplated hereby, or Transferred Rights and the use assumption of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderAssumed Obligations may differ both in kind and amount from any Distribution.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller (i) is a sophisticated seller with respect to the quality sale of the Transferred Rights and the retention of the Retained Obligations, (ii) has adequate information concerning the business and financial condition of Borrower or absence any Obligor to make an informed decision regarding the sale of the Transferred Rights and the retention of the Retained Obligations and (iii) has independently and without reliance upon Buyer, and based on such information as Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that Seller has relied upon Buyer's express representations, warranties, covenants, and indemnities in this Agreement. Seller acknowledges that Buyer has not given Seller any investment advice, credit information, or defects in Seller's products opinion on whether the sale of the Transferred Rights or servicesthe retention of the Retained Obligations is prudent.
(q) Seller is not a party toacknowledges that (i) Buyer currently may have, or bound byand later may come into possession of, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) information with respect to the Transferred Rights, Borrower, any Obligor or any of their Affiliates that is not known to Seller and that may be material to a decision to sell the Transferred Rights and to retain the Retained Obligations ("Seller Excluded Information"), (ii) Seller has determined to sell the Transferred Rights and to retain the Retained Obligations notwithstanding its propertieslack of knowledge of the Seller Excluded Information and (iii) Buyer shall have no liability to Seller, assetsand Seller waives and releases any claims that it might have against Buyer or any Buyer Indemnitee whether under applicable securities laws or otherwise, personnel with respect to the nondisclosure of the Seller Excluded Information in connection with the transactions contemplated hereby; provided, however, that the Seller Excluded Information shall not and does not affect the truth or business activitiesaccuracy of Buyer's representations or warranties in this Agreement.
(r) Seller is an "accredited investor" as defined in Rule 501 under the Securities Act. Without characterizing the Transferred Rights as a "security" within the meaning of applicable securities laws, Seller has not made any offers to sell, or solicitations of offers to buy, any portion of the Transferred Rights in violation ofof any applicable securities laws.
(s) Seller has provided to Buyer (i) true, correct and complete copies of each Predecessor Transfer Agreement to which Seller is a party and (ii) to the extent and in the form received by Seller from Immediate Prior Sellers, (a) the Credit Documents and (b) the other Predecessor Transfer Agreements. A true and complete list of such Credit Documents and Predecessor Transfer Agreements is set forth on Schedule 2.
(t) Other than as set forth on Schedule 1, Seller has not received (by set-off or delinquent otherwise) or directed to others any payments or other Transfers from or on account of Borrower or any Obligor in respect toof the Transferred Rights on or after the 95th day preceding the Agreement Date.
(u) Except for consents and waivers given by Lenders generally pursuant to and in accordance with the Credit Agreement, Seller has not given its consent to change, nor has it waived, any decree, order term or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, provision of any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, Credit Document or the Business are subject or to which it, itself, is subject)Predecessor Transfer Agreements, including, without limitation, laws, statutes and regulations relating with respect to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation the amount or time of any payment of principal or the foregoing which Seller has received within the past three years are attached to the Disclosure Schedulerate or time of any payment of interest.
(sv) SellerSeller is not a party to any document, the Purchased Assets instrument or agreement (other than any Predecessor Transfer Agreements and the Business are Credit Documents specified in compliance Schedule 2) that could materially and adversely affect the Transferred Rights or Buyer's rights and remedies under this Agreement.
4.2 Except as expressly stated in this Agreement and the Assignment, Seller makes no representations or warranties, express or implied, with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached respect to the Disclosure Schedule. transactions contemplated herein and therein.
4.3 Seller possesses all Environmental Permits which are required for the operation acknowledges that (a) its sale of the Business, and Transferred Rights to Buyer is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to irrevocable; (b) Seller are attached shall have no recourse to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoeverTransferred Rights; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.and
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership an independent contractor operating in commendam, duly organized, validly existing and Mexico with significant business relationships in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedUnited States.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership all requisite power and authority to enter into execute and perform under (x) deliver this Agreement and (y) all documents those other agreements and instruments required to be executed by Seller pursuant or delivered under this Agreement, and to perform its obligations hereunder, and this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and been duly executed and delivered by general partners each Seller and constitutes, assuming due authorization, execution and delivery of Seller so authorized. This this Agreement constitutes by Buyer, and any other agreements to be executed and delivered by Buyer pursuant hereto, when fully executed and delivered, will constitute, a valid and legally binding obligation of Seller, each Seller enforceable against Seller it in accordance with its terms (their terms, except to the extent that enforcement thereof may be affected by laws relating subject to applicable bankruptcy, insolvency, reorganization, insolvency moratorium, fraudulent conveyance and similar laws now or hereafter affecting creditors' rights generally and by the availability general principles of injunctive relief, specific performance and other equitable remediesequity (regardless of whether enforceability is considered in a proceeding at law or in equity). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(ec) Neither the execution and delivery by Seller of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation performance by Seller of the transactions herein contemplated, its obligations hereunder will (i) conflict with or result in a any breach of any provision of the Certificate of Incorporation or Bylaws of any corporation or Seller; (ii) result in (with or without the giving of notice or lapse of time or both) a material violation or breach of, or constitute a default or give rise to any right of termination, cancellation or acceleration under any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsany Indebtedness, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contractlicense, lease or agreement not disclosed Contract or similar instrument or obligation to Producer as required in this Section 4.3(k).
(l) Seller is not a party towhich any Seller, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Intangible Assets, may be bound; or (iii) violate any order, injunction, decree, statute, rule or regulation of Seller's personnelany federal, state, local or foreign governmental entity or municipality or subdivision thereof or court, tribunal, commission, board, bureau, agency or legislative, executive, governmental or regulatory authority or agency (a "GOVERNMENTAL AUTHORITY") to which any Seller or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(sd) Seller, Seller owns the Purchased Intangible Assets and has and will deliver to Buyer, good, valid and marketable title to, all of the Business are Intangible Assets, in compliance with each case, free and clear of all Environmental Laws mortgages, pledges, security interests, liens (as herein defined) and any Environmental Permits (as herein definedincluding tax liens). A copy , charges, options or other encumbrances of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreementnature whatsoever (collectively, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and LIENS"Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws).
Appears in 1 contract
Samples: Asset Purchase Agreement (Lexington Barron Technologies Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly corporation incorporated and existing and in good standing, under the laws of Ontario and has the State corporate power to hold, collectively, legal and beneficial ownership of Louisiana. the Property, and enter into and perform all duties and obligations imposed on Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.under this Agreement;
(b) Except as set forth in the Disclosure Schedule, execution and delivery of and performance by the Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents the consummation the purchase and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement sale contemplated hereby has been, and Seller's Ancillary Documents will be, been duly authorized by all necessary partnership action(s)corporate action on the part of the Seller,
(c) neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the constating documents, articles or by-laws of the Seller or any of the terms, conditions, or provisions of any agreement or instrument to which Seller is a party or by which Purchaser or any of its assets is bound;
(d) this Agreement has been duly executed and delivered by general partners of the Seller so authorized. This Agreement and constitutes a legal, valid and legally binding obligation of Selleragreement, enforceable against the Seller in accordance with its the terms (except subject only to the extent that enforcement may be affected by any limitation under applicable laws relating to (x) bankruptcy, reorganizationwinding-up, insolvency insolvency, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditors' rights ’ rights, and by (y) the availability discretion that a court may exercise in the granting of injunctive relief, equitable remedies such as specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.injunction;
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller Nominees listed opposite certain of the transactions herein contemplatedLand and Improvements described in Schedule 1.1(a) are the sole registered owners of such Land and Improvements, will conflict with or result in a breach as nominees for and on behalf of any Storage Spot, the sole beneficial owner thereof, and of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or all other organizational documents, or of 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.Property;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been not a party are properly reflected therein.non-resident of Canada within the meaning of the Income Tax Act of Canada and the Seller is a registrant for the purposes of any taxes imposed under Part IX of the Excise Tax Act, R.S., 1985, c. E-15;
(g) Complete and accurate copies there are no parties in possession of, or claiming any possession to, any portion of the audited balance sheetsProperty, statements of income and retained earnings, statements of cash flowsother than pursuant to the Leases (as reflected on the Rent Roll), and notes there are no leases, service contracts, maintenance agreements or other contracts relating to financial statements (together with any supplementary information thereto) of Selleror otherwise encumbering the Property, all as of and for other than the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, Permitted Encumbrances and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.Contracts;
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven Rent Roll (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller which is effective as of the date indicated thereon) is true, correct and complete in all material respects, with no concessions, discounts or other periods of free or discounted rent having been given to any tenant in respect thereof, other than as disclosed on the Rent Roll. The Rent Roll shall be updated and recertified by the results Seller at Closing, and shall, at such time, be true, correct and complete in all material respects with no concessions, discounts or other periods of operations of Seller for free or discounted rent having been given, other than as disclosed on the period covered by said statements, in accordance with GAAP, consistently applied.Rent Roll;
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (iim) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which Seller has not entered into any agreement with any Governmental Authority affecting the Property other than as has been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source disclosed in writing and delivered to the effect Purchaser or that there is lacking any Permit needed in connection with registered against title to the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.Land;
(j) Seller has not suffered violated or been threatened with breached, in any material adverse change in the businessrespect, operations, assets, liabilities, financial condition or prospects any of the Businessterms or conditions of any Permitted Encumbrance, including, without limiting and to the generality knowledge of the foregoingSeller, all the existence or threat of covenants to be performed by any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.other party to the Permitted Encumbrances have been fully performed;
(k) The Disclosure Schedule correctly all accounts that are due and completed lists and describes all material contractsowing for work or services performed or materials placed or furnished upon or in respect of the construction, leasescompletion, repair, renovation or maintenance of the Property have been fully paid to date, and agreements to which Seller is a party and which relate at Closing, there will be no such outstanding accounts that could result in the filing of any encumbrance or lien against the Property, other than may be outstanding pursuant to the conduct Construction Contracts;
(l) Seller has no knowledge of, and has not received any written notice of, any violation of any applicable laws from any Governmental Authorities concerning the BusinessProperty, including, without limitation: employment and employment, any outstanding work orders or deficiency or non-related agreements; covenants not to compete; loan agreements, notescompliance notices;
(m) Seller has no knowledge of, and security agreements has not received, with respect to the Property, written notice from any Governmental Authority regarding any change to the zoning classification, any condemnation, expropriation or similar proceedings pending or threatened against the Property, or any proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements;
(n) Seller has not received any written or verbal notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property;
(o) there are no tax arrears, local improvement or capital charges, sewer taxes and rents, special levies or assessments, or other rates or charges of a similar nature associated with or pertaining to the Property (other than notesrealty taxes accruing from day to day) (collectively, loan agreements the “Realty Taxes”), the Seller has not received written notice in connection therewith and related security documents that no agreement has been entered into by the Seller with the municipality or with any other Governmental Authority which would have the effect of making all or part of the Property subject to or assessed for any such Realty Taxes. There are being satisfied at no appeals, claims, actions, suits, proceedings or investigations pending, or, to the knowledge of the Seller, threatened against the Seller relating to such Realty Taxes and the Seller knows of no valid basis for any such claim, action, suit, proceeding, investigation or discussion;
(p) there are no actions, suits, arbitrations, alternative dispute resolution processes, or administrative or other proceedings by or before any Governmental Authorities or other person, pending, or, to the knowledge of the Seller, threatened against or affecting the Property, and the Seller does not know of any valid basis for any such action, suit, arbitration process or proceeding. To the knowledge of the Seller, there are no investigations by any Governmental Authorities in progress with respect to the Property nor is there any valid basis for any such investigation. Seller is not subject to any judgment, order or decree entered in any lawsuit or proceeding nor has the Seller settled any claim prior to Closing); sales representativebeing prosecuted in respect of it. Seller is not the plaintiff or complainant in any action, distributionsuit, franchisearbitration, advertising and similar agreements; concession alternative dispute resolution process or occupancy agreements; leases and subleases proceeding arising out of realty or personalty; guest roomconnected with the Property;
(q) there are no options to purchase the Property, banquetor any portion thereof, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k)favor of any third party, and there are no rights of first refusal relating to the Property, or any portion thereof, in favor of any third party;
(r) to the best knowledge of Seller, all other contracts or instruments Due Diligence Items delivered by Seller to Purchaser are true, correct and complete in all material respects;
(s) there are no employment agreements of any kind to which Seller is a party, are including union and collective bargaining agreements, which will be binding on Purchaser after the Closing, other than the Construction Contracts; and
(t) save and except as disclosed by the Purchaser to the Seller in full force and binding upon respect of the parties thereto. No default by Stoney Creek Property, the Seller has occurred thereunder andreceived no notice of any environmental contamination on, at or adjacent to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become Property; Seller shall deliver a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) certificate to Purchaser true at Closing updating and correct copies of recertifying all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify foregoing representations and warranties to Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each . All of the Seller's employees is terminable at will without cost to foregoing representations and warranties expressly shall survive the Seller except Closing for payments required under Seller's employee benefit plansa period of one (1) year thereafter. The Purchaser acknowledges that, employee welfare plans and similar plans and payment of accrued salaries other than as expressly represented or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired warranted by the Seller prior pursuant to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of Purchaser shall purchase the BusinessProperty on an “as is, and 31 part-time employeeswhere is” basis.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.)
Seller’s Representations and Warranties. The Seller hereby represents and warrants to the Purchaser thatas of the date hereof and as of the Closing Date, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) The Seller is a limited partnership in commendam, and Costa Rican Company are companies duly organized, validly existing and existing, in good standing, standing and qualified to do business under the laws of Costa Rica, the State of Louisiana. Seller has all necessary and Costa Rican Company have the power and authority to conduct hold the Business Lot and to transfer, as provided herein, its interest in the Business is now being conducted.Estate Home and Lot to Purchaser, and the party signing for the Seller has the power and authority to execute and deliver this Agreement and related documents on behalf of the Seller;
(b) Except as set forth All the documents executed by the Seller which are to be delivered to Purchaser at Closing are (i) duly authorized, executed, and delivered by Seller and Costa Rican Company; (ii) are legal, valid, and binding obligations of Seller and Costa Rican Company and (iii) are sufficient to transfer Seller’s interest in the Disclosure ScheduleEstate Home and Lot through Costa Rican Company;
(c) Seller, Seller holds good through Costa Rican Company, is the holder of the Estate Home and marketable Lot, and upon Closing, title to the Purchased Assets, Estate Home and Lot will be transferred to Purchaser free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other liens and encumbrances of any kind or nature other than except for the Permitted Exceptions, Exceptions and all the items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated disclosed under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.10;
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person Costa Rican Company is required for Seller's execution a special purpose entity incorporated and delivery of this Agreement and Seller's Ancillary Documents and the consummation wholly-owned by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
that has not (ei) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Sellerengaged in any business or activity; (ii) incurred any outstanding obligations, nor the consummation by Seller of the transactions herein contemplatedmonetary or otherwise; (iii) entered, will conflict with either verbally or result in a breach written form, in any agreements that provide for any obligations in favor of any of the termsCosta Rican Company’s shareholders, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documentsofficers, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court directors or any governmental authority third parties, except as expressly provided in this Agreement or for purposes of any arbitration award.
(f) Seller's books, accounts requesting an assignment of the Concession to obtain title to the Concession and records are, other activities and have been, maintained in Seller's usual, regular and ordinary manner, documents required in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance chargesMaster Declaration;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents represents, warrants and warrants covenants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, standing under the laws of the State of Louisiana. Delaware and is qualified to do business in the Commonwealth of Massachusetts.
(b) Seller has all requisite and necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good execute and marketable title deliver this Agreement and to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentperform Seller's obligations hereunder.
(c) The execution, delivery and performance by Seller has full partnership power and authority to enter into and perform of its obligations under (x) this Agreement will not result in a breach of any of the terms or provisions of, or constitute a default (or a condition which, upon notice or lapse of time or both, would constitute a default) under any Agreement, instrument or obligation to which Seller is a party or by which Seller is bound and will not constitute a violation of any law, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court or other governmental authority having jurisdiction over Seller.
(yd) all documents There are no judgments, actions, suits or proceedings existing or pending (or, to the knowledge of Seller, threatened) against Seller or the Premises, at law or in equity, before or by any governmental authority having jurisdiction over Seller, which could have a material and instruments to be executed by Seller pursuant to adverse effect upon its performance of this Agreement Agreement.
(collectively, "Seller's Ancillary Documents"). e) This Agreement has been, is the legal and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except terms, subject to the extent that enforcement may be affected by laws relating to general principles of equity, bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance reorganization and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance similar laws affecting the enforcement of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardcontracts generally.
(f) Seller's booksThere are no current leases or other occupancy agreements in existence, accounts and records arenor are there any tenants, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions respect to which Seller is or has been a party are properly reflected thereinany portion of the Premises.
(g) Complete and accurate copies The Land is the only real property owned by Seller in, the Town of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearsLittleton.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there There are no commissions suits, actions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually proceedings pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance the Premises before any court or arbitration proceeding arising out of administrative agency or under collective bargaining agreements is pending and no claims therefor exist;
(iv) officer which, if adversely determined, would have a materially adverse effect upon the employment of each operation or condition, financial or otherwise, of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plansPremises, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3including, above). No employee or former employee has but not limited to, any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereofeminent domain proceedings, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or is not in default with respect to, nor has notice of violation of, any judgment, order, writ, injunction, rule or regulation of any court or governmental agency or officer to which Seller is subject in any way affecting the consummation of the transaction contemplated hereby, Premises or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereundertransactions provided for herein.
(pi) There are no material claims pending or, to the best of Seller's knowledge, anticipated agreements or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject)contracts, including, without limitation, lawsemployment contracts, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of affecting any of the foregoing which Seller has received within Premises or any use of the past three years are attached to Premises that would not be terminable at will by Buyer without penalty from and after the Disclosure ScheduleClosing.
(sj) SellerOther than miscellaneous work which Seller shall pay for in full, no work has been done on the Purchased Assets Premises which could give rise to any liens under Massachusetts General Laws Chapter 254, and no contracts are outstanding or in effect with respect to the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy doing of any noticesuch work. Without limiting the foregoing, citationSeller shall remain liable after the delivery of the Deed hereunder for all obligations incurred or contracted by Seller prior to Closing, inquiry or complaint which Seller has received for labor and materials furnished in connection with work and construction at the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure SchedulePremises. Seller possesses agrees to discharge all Environmental Permits which are required for the operation such obligations prior to delivery of the BusinessDeed, but will indemnify fully Buyer against all claims and is in compliance with the provisions expenses (including reasonable attorney's fees) based upon Seller's failure to discharge any or all of all such Environmental Permits. Copies of all Environmental Permits issued obligations.
(k) Buyer represents, covenants and warrants to Seller are attached that Buyer has the legal right, power and authority to the Disclosure Schedule. As used in enter into this Agreement, "Environmental Laws" means Agreement and to perform all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awardsof its obligations hereunder, and the common lawexecution and delivery of this Agreement and the performance by Buyer of its obligations hereunder: (i) have been duly authorized by all requisite corporation action; and (ii) will not conflict with, which pertain to hazardous substances or materialsresult in any breach of, environmental matters any of the terms, covenants and provisions of the Buyer's or contamination bylaws or any law or any regulation, order, judgment, writ, injunction or decree of any type whatsoever; and "Environmental Permits" means licensescourt of governmental authority, permits, registrations, governmental approvals, agreements and consents or any agreement or instrument to which are required under Buyer is a party or are issued pursuant to Environmental Lawsby which it is bound.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(ai) Seller is a limited partnership in commendam, corporation duly organized, validly existing and in good standing, standing under the laws of the State state of Louisianaits formation. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents the transactions contemplated hereby, and instruments to be executed by Seller pursuant to Seller’s execution and performance of this Agreement (collectively, "Seller's Ancillary Documents")has been duly and validly authorized by all necessary action on its part. This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and been duly executed and delivered by general partners of Seller so authorized. This Agreement and constitutes a its valid and legally binding obligation of Sellerobligation, enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement may be affected as limited by laws relating affecting creditors’ rights generally and except as such enforceability is subject to bankruptcygeneral principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ii) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated hereby, reorganizationeither alone or with the giving of notice or the passage of time or both, insolvency and creditors' rights and by the availability conflict with, constitute grounds for termination of injunctive reliefor result in any violation or default under, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance any term of any governmental body agreement, mortgage, indenture, license, permit, lease or agency prohibiting Seller's other instrument, judgment, decree, order, law or regulation by which Seller is bound. The execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated hereby by this Agreement Seller do not and Seller's Ancillary Documentswill not require the consent of any third party or governmental authority other than the FCC.
(eiii) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation The License is validly held by Seller of the transactions herein contemplatedpursuant to Final Order, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon effect, has been issued for the parties theretofull term customarily issued for non-nationwide 000 XXx licenses, and is not subject to any restriction or condition which would limit in any respect the full operation of the License as authorized. No default by Seller has occurred thereunder and, does not currently have any base or fixed stations registered with the FCC and is not operating any unregistered or unauthorized facilities. All FCC regulatory fees assessed with respect to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunderLicense have been timely paid. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there There are no commissions applications, complaints or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually proceedings pending or, to the best of Seller's ’s knowledge, threatened against before the FCC that may result in the revocation, material adverse modification, non-renewal or directly suspension of any of the License, or the imposition of any fines, forfeitures, or other administrative actions with respect to the operation of the Station, other than proceedings affecting Seller;
(iii) no grievance the wireless communications and the 220 MHz service generally. Seller is not subject to any outstanding judgment or arbitration proceeding arising out order of or under collective bargaining agreements the FCC relating to the License, and is pending and no claims therefor exist;not in “red light” status.
(iv) the employment No insolvency proceedings of each of the Seller's employees is terminable at will any character, including without cost to the Seller except for payments required under Seller's employee benefit planslimitation, employee welfare plans and similar plans and payment of accrued salaries bankruptcy, receivership, reorganization, composition or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3arrangement with creditors, above). No employee voluntary or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereofinvoluntary, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against affecting Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There License are no material claims pending or, to the best of Seller's ’s knowledge, anticipated threatened, and Seller has not made any assignment for the benefit of creditors or threatened against Seller with respect to taken any action which would constitute the quality basis for the institution of or absence of or defects in Seller's products or servicessuch insolvency proceedings.
(qv) Seller is not a party tohas good, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect valid and marketable title to its properties, assets, personnel or business activities.
(r) the License free and clear of all Liens. Seller is not in violation ofthe lawful, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any beneficial and exclusive owner of the Purchased Assets, any of Seller's personnel, License and Seller has the unrestricted right to sell or cause the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any transfer of the foregoing which Seller Partial License to Buyer at Closing free and clear of Liens. No person or entity holds or has received within been granted a right of first refusal or option to purchase the past three years are attached to geographic area or spectrum covered by the Disclosure SchedulePartial License.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Each Seller hereby represents and warrants to the Purchaser that, to that as of the best Closing Date or as of Seller's knowledge and except as set forth in the Disclosure Schedulesuch date specifically provided herein:
(a) Such Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, standing as a corporation under the laws of the State of Louisiana. Seller Delaware and has all necessary the power and authority to conduct own its assets and to transact the Business as business in which it is currently engaged. Such Seller is duly qualified to do business and is in good standing in each jurisdiction in which the Business character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure to so qualify would have a material adverse effect on (a) its business, properties, assets or condition (financial or other), (b) the performance of its obligations under this Agreement or any other Transaction Document to which it is now being conducteda party, (c) the value or marketability of the Mortgage Loans or REO Property, or (d) its ability to foreclose on the related Mortgaged Properties.
(b) Except When executed and delivered, assuming necessary entity power and authority of each Seller, this Agreement and each other Transaction Document to which it is a party will constitute such Seller’s legal, valid and binding obligations enforceable in accordance with its terms, except as set forth enforcement of such terms may be limited by (1) bankruptcy, insolvency, reorganization, receivership, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by the availability of equitable remedies, (2) general equity principals (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (3) public policy considerations underlying the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid forsecurities laws, to the extent that normal business practice permits, except those items identified on such policy considerations limit the Disclosure Schedule enforceability of the provisions of this Agreement which are subject purport to installment payments or leases and with respect to which there are no installments due which are delinquentprovide indemnification from securities laws liabilities.
(c) Such Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by holds all necessary partnership action(s)licenses, certificates and duly executed permits from all governmental authorities necessary for conducting its business as it is presently conducted, except for such licenses, certificates and delivered permits the absence of which, individually or in the aggregate, would not have a material adverse effect on the ability of such Seller to conduct its business as it is presently conducted.
(d) Assuming the due authorization thereof by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of each Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement or any other Transaction Document to which it is being made in connection with the winding-up of a party by such Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will not conflict with or result in a breach of, or constitute a default under, any provision of any of the terms, conditions existing law or provisions of Seller's Articles of Partnership In Commendam regulation or other organizational documents, or of any statute or administrative regulation, or of any order, writ, injunction, judgment order or decree of any court applicable to such Seller or any governmental authority of its properties or any provision of its certificate of incorporation, bylaws, or constitute a material breach of, or result in the creation or imposition of any arbitration awardlien, charge or encumbrance upon any of its properties pursuant to any mortgage, indenture, contract or other agreement to which it is a party or by which it may be bound.
(fe) Seller's booksNo certificate of an officer, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is written statement or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according report delivered pursuant to the terms of this Agreement will be or any other Transaction Document to which it is a default party by such Seller contains any untrue statement of a material fact or an event omits to state any material fact necessary to make the certificate, statement or report, in the light of accelerationthe circumstances under which it is delivered or made, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closingnot misleading.
(mf) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date[Reserved].
(ng) With respect There are no actions or proceedings against, or investigations of, such Seller pending or, to employees its actual knowledge, threatened (by written communication to it of a present intent to initiate such action, proceeding or investigation), before any court, administrative agency or other tribunal that, if determined adversely, would prohibit or materially and adversely affect such Seller:’s performance of any of its respective obligations under, or the validity or enforceability of, this Agreement or any other Transaction Document to which it is a party.
(h) Such Seller is not transferring the Mortgage Loans or REO Properties to the Purchaser hereunder with any intent to hinder, delay or defraud any of its creditors.
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, Such Seller acquired title to the best Mortgage Loans and REO Properties in good faith, without notice of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Selleradverse claims.
(vj) The Disclosure Schedule contains a true transfer, assignment and complete list of all employees who are employed by the Seller as conveyance of the date hereofMortgage Notes, the Mortgages and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of REO Properties by such Seller pursuant to this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there Agreement are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, not subject to the best of Seller's knowledge, threatened, against Seller bulk transfer laws or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects any similar statutory provisions in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into effect in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activitiesapplicable jurisdiction.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Transfer and Assignment Agreement (Franklin Credit Holding Corp/De/)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser thatPurchaser, subject to the best of Seller's knowledge and except as limitations set forth in this Article 5, that as of the Disclosure Scheduledate hereof:
(ai) Seller AEI XVIII is a limited partnership in commendam, that has been duly organized, formed and is validly existing and in good standing, standing under the laws of the State of Louisiana. Seller Minnesota;
(ii) AEI XXII is a limited partnership that has all necessary power been duly fonned and authority to conduct is validly existing and in good standing under the Business as laws of the Business State of Minnesota; and
(iii) AEI 24 is now being conducteda limited liability company that has been duly formed and is validly existing and in good standing under the laws of the State of Delaware.
(b) Except as set forth in This Agreement and the Disclosure Schedule, Seller holds good and marketable title to consummation of the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property transactions contemplated hereby have been fully paid for, to the extent that normal business practice permits, except those items identified duly authorized by all necessary action on the Disclosure Schedule which are subject to installment payments or leases part of each tenant in common comprising Seller and, upon the assumption that this Agreement constitutes a legal, valid and with respect to which there are no installments due which are delinquentbinding obligation of Purchaser, this Agreement constitutes a legal, valid and binding obligation of each tenant in common comprising Seller.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated hereby by this Agreement Seller do not (i) violate or conflict with the certificates of limited partnership, certificate of formation, partnership agreements or operating agreement of any tenant in common comprising Seller that is an entity, (ii) violate or conflict with any judgment, decree or order of any court applicable to or affecting Seller, (iii) breach the provisions of, or constitute a default under, any contract, agreement, instrument or obligation to which Seller is a party or by which Seller is bound and which relates to the Property which will remain uncured as of Closing, or (iv) violate or conflict with any law applicable to Seller's Ancillary Documents.
(d) None of the tenants in common comprising Seller is a "foreign person" within the meaning of section 1445 of the Internal Revenue Code of 1986, as amended (the "Code").
(e) Neither No petition in bankruptcy (voluntary or otherwise), assignment for the execution and delivery benefit of this Agreement and Seller's Ancillary Documents by Sellercreditors, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions petition seeking reorganization or provisions of Seller's Articles of Partnership In Commendam arrangement or other organizational documents, action under Federal or of State bankruptcy laws is pending against or contemplated by 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 awardtenant in common comprising Seller.
(f) There are no occupancy rights (written or oral), leases or tenancies presently affecting the Property or any portion thereof other than pursuant to the Lease. Notwithstanding the foregoing, Seller makes no representation as to any subleases, licenses or other occupancy rights presently affecting the Property or any portion thereof entered into by Garden Ridge and a third party in respect of which Seller has not granted its consent, however, Seller has no knowledge of any such subleases, licenses or other occupancy rights. Seller represents and wan-ants to Purchaser the following with respect to the Lease:
(i) A true, correct and complete copy of the Lease is attached hereto as Exhibit A; the Lease is in full force and effect and has not been modified, supplemented, or amended in any way, except as attached on Exhibit A annexed hereto; and the Lease represents the entire agreement between Seller, as landlord thereunder, and Garden Ridge;
(ii) The amount of fixed monthly rent is $61,100;
(iii) To the best of Seller's booksknowledge, accounts all work to be performed for Garden Ridge under the Lease, if any, has been performed as required and records arehas been accepted by Garden Ridge; and there are no outstanding payments, and have beenfree rent, maintained in or other payments, credits, allowances or abatements due Garden Ridge;
(iv) Neither Seller, as landlord, nor, to Seller's usualknowledge, regular and ordinary mannerGarden Ridge, is in accordance with prudent business practices and generally accepted accounting practicesdefault, and and, to Seller's knowledge, Garden Ridge has no offset, defense, deduction or claim against Seller, as landlord; and
(v) Garden Ridge has no right or option to purchase all material transactions or any part of the Property or to which Seller is or has been a party are properly reflected thereinoccupy any additional space at the Property.
(g) Complete There are no service, maintenance and accurate copies of supply contracts affecting the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements Property in effect on the date hereof (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately Service Contracts") except those Service Contracts entered into between Garden Ridge and completely the financial position of its third party vendors. Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered is not a party to nor bound by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal yearssuch Service Contracts.
(h) Complete Annexed hereto as Schedule 5.01(h) is a complete list of all brokerage, leasing or listing agreements (collectively, "Brokerage Agreements") affecting the Property or any space covered by the Lease in effect on the date hereof. Seller has delivered or made available to Purchaser true and accurate complete copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as each of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedBrokerage Agreements.
(i) The Disclosure Schedule lists all existing Permits and Seller has not granted to any person or entity (other than Purchaser) a right of first refusal option or other right to acquire the Property or any interest therein, and, to Seller's knowledge, no such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred rights exist except as may be set forth in the due observance or performance documents of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to record reflected in the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewithTitle Commitment.
(j) Seller has not suffered or been threatened with received any material adverse change in written notice of special assessment against the business, operations, assets, liabilities, financial condition or prospects Land for public improvements constructed prior to the date of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employeesthis Agreement that will remain unpaid at Closing.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to There are no rental delinquencies existing under the conduct Lease as of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) close of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in month immediately preceding the date of this Section 4.3(k)Agreement.
(l) Seller has not received written notice from any Governmental Authority (defined below), of: (i) any pending or threatened condemnation proceedings affecting the Property or any part thereof; or (ii) except as may disclosed by Purchaser's Title Commitment and the related municipal searches received in connection therewith, any material violations of any laws, rules or regulations relating to the use or operation of the Property. To Seller's knowledge, there is not a party to, now pending nor is there any proposed or bound by, threatened proceeding for the rezoning of the Property or any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closingportion thereof.
(m) Except as disclosed set forth on Schedule 5.01(m) attached hereto and for commissions due or that may become due with respect to renewal or expansion options that may be exercised following the date hereof, no commission, fee or other compensation is payable with respect to the Lease and there is no currently existing obligation, regardless of whether such obligation is contingent on the Disclosure Schedulepassage of time or the occurrence of any event or both, there are no commissions to pay, either currently or referral in the future, any leasing commissions, fees relating or other compensation in respect of renewals and extensions of the Lease or the expansion of the premises covered by the Lease. There does not currently exist any exclusive or continuing leasing or brokerage agreements as to any of the Business currently outstanding, nor space covered by the Lease that will there be any such commissions or referral fees outstanding, on or after become the Closing Dateobligation of Purchaser following Closing.
(n) With respect Except as described in Schedule 5.01(n) attached hereto, no proceeding, suit or litigation against Seller relating to employees of Seller:
(i) there the Property or any part thereof is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against in any court or directly affecting Seller;
(iii) no grievance other tribunal or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has before any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employeesgovermnental authority.
(o) Except as set forth on Since August 15, 2003, the Disclosure Scheduledate of the existing Phase I environmental report for the Property prepared by HBC Terracon, there is no litigation or proceedinga copy of which has been delivered by Seller to Purchaser, in law or in equitySeller has not ordered, and there are no proceedings or governmental investigations before is not in possession, of any commission or other administrative authority, pending, or, to subsequent environmental reports regarding the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunderProperty.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is does not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which own any of the Purchased Assetsfixtures, any systems, machinery, equipment and items of Seller's personnel, tangible and intangible personal property attached to or used in connection with the Land or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure ScheduleImprovements.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents 20.1 The Sellers represent and warrants to Purchaser that, warrant to the best Buyers as of Seller's knowledge the date hereof and except as set forth in on the Disclosure ScheduleDelivery Date and on the Payment Date:
(a) Seller is the Sellers:
(i) are a limited partnership in commendamcorporation, duly organizedincorporated, validly existing and in good standing, standing under the laws of Liberia and are not a Restricted Person (as defined in the State of Louisiana. Seller has all necessary Bareboat Charter);
(ii) have the power to own their assets and authority to conduct the Business carry on their business as the Business that business is now being conducted.;
(biii) Except as set forth in have the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenperform, and Seller's Ancillary Documents will be, duly authorized by have taken all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except action to authorize the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of of, this Agreement and the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and;
(iv) no occupant under a lease are not owned or concession agreement has received any notice from any source to controlled by or acting directly or indirectly on behalf of or for the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss benefit of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance chargesRestricted Person;
(iiv) there is no request for union representationdo not own or control a Restricted Person;
(vi) do not have a Restricted Person serving as a director, labor strike, dispute, slowdown or stoppage actually pending officer or, to the best of Seller's its knowledge, threatened employee; and
(vii) are not a party to any other agreement whereby it agrees to sell or otherwise transfer legal title to the Vessel;
(e) neither the Sellers nor any of their directors, officers or employees or any person acting on their behalf has received notice or are aware of any claim, action, suit, proceeding or investigation against any of them or the Vessel with respect to Sanctions by a Sanctions Authority
(f) no proceeds of the Purchase Price of the Vessel shall be made available, directly affecting Selleror indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by or in breach of Sanctions;
(g) on the Delivery Date and immediately prior to delivery of the Vessel to the Buyers, the Sellers are the sole legal and beneficiary owner of the Vessel, and the Vessel:
(i) is in a good and safe condition;
(ii) is classed with the Classification Society at the highest classification available for vessels of its type and is free of all recommendations or conditions; and
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending has all trading and no claims therefor exist;class certificates valid for at least six (6) months; and
(ivh) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans Callback Form and similar plans and payment of accrued salaries or wages and vacation pay all information (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, including without limitation, lawsthe identification documents, statutes authorisations and regulations relating to equal employment opportunitiesspecimen signatures) provided thereunder remains true, fair employment practices, unfair labor practices, terms of employment, occupational health accurate and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleup-to-date.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Memorandum of Agreement for Sale and Purchase of Ships
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser thatBuyer (with the understanding that Buyer is relying on said representations, to warranties and covenants in purchasing the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller Subject Property in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1), 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereofEffective Date and the Closing Date, as follows:
a. Seller has not, and to Seller’s Knowledge, DRH Construction has not, previously granted, conveyed, sold, mortgaged, pledged, hypothecated or otherwise transferred any interest in the results of operations and cash flows of Seller Subject Property to any other person or entity except for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the BusinessTitle Exceptions, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Specific Recorded Property Documents.
b. Seller has occurred thereunder andnot received written notice of any claims, actions, suits, or other proceedings pending or, to the best actual knowledge of either Xxxxx Xxxxxx or Xxxxxxxx Xxxxxx (“Seller's knowledge’s Knowledge”), threatened by any governmental department or agency, or any other entity or person, pertaining to the DRHE Property.
c. To Seller’s Knowledge and other than the Title Exceptions, there are no default by leases, contracts or agreements pertaining to the other contracting parties has occurred thereunder. No eventmaintenance, occurrence acquisition, management, use or condition exists whichpossession of all or any part of the DRHE Property or any rights or options to acquire or use any part or all of the DRHE Property, with except for the lapse of timeXxxxxx Mining Lease, the giving obligations set forth on Exhibit D and the Specific Recorded Property Documents and all of noticethe contracts or agreements by which Seller or its predecessors or affiliates acquired, transferred, assigned or sold the Subject Property.
d. The execution, delivery, and performance by Seller of this Agreement does not and will not conflict with, or bothresult in the breach or termination of any provision of, or the happening of any further event or condition, would become constitute a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound byunder, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenturedeed of trust, note lease, contract, or other instrument or agreement or any order, judgment, award, or decree to which Seller or the DRHE Property is subject or by which may be bound, or result in the creation of a lien, charge, or encumbrance upon the DRHE Property.
e. Seller has the full right, legal capacity and means to transfer the DRHE Property, and to Seller’s Knowledge, DRH Construction has the full right, legal capacity and means to transfer the DRH Construction Property, without obtaining the consent or approval of any governmental authority or any other person or entity to which Seller, DRH Construction or any of Seller’s or DRH Construction’s property may be subject; provided, however that Seller makes no warranty or representation about the consent rights of ASARCO for DRH Construction to assign the ASARCO Chose in Action.
f. Other than any general real property taxes assessed but not yet due and owing by Seller and those arising under the terms of which performance by Seller according to Title Exceptions, the terms of this Agreement will be a default or an event of accelerationSpecific Recorded Property Documents, or whereby timely performance by Seller according to the terms of this Agreement may be prohibitedXxxxxx Mining Lease and the obligations set forth on Exhibit D, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Scheduleif any, there are no commissions liabilities or referral fees relating obligations related to the Business currently outstanding, nor will there be DRHE Property that Seller is obligated to satisfy on or before the Closing or any such commissions or referral fees outstanding, on or liabilities and obligations that Buyer may be obligated to satisfy after the Closing Dateand which arise by, through or under Seller.
(n) With respect g. To Seller’s Knowledge and subject to employees of Seller:
the Title Exceptions, the Xxxxxx Mining Lease and the Specific Recorded Property Documents, (i) there is no pending adverse claim or threatened unfair labor practice charges challenge against or employee grievance charges;
to the ownership of the DRHE Property nor is there any basis therefor, (ii) there is are no request for union representationoutstanding agreements or rights or options to acquire or purchase the DRHE Property or any portion thereof, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance person, firm or arbitration proceeding arising out corporation has any proprietary or possessory interest in the DRHE Property other than Seller and Buyer pursuant to this Agreement, and (iv) no person is entitled to any royalty or other payment in the nature of rent or under collective bargaining agreements royalty on any mineral products therefrom except as set forth on Exhibit D.
h. To Seller’s Knowledge, all documents delivered to Buyer by Seller pursuant to this Agreement are complete and correct copies of originals. Seller does not make, and shall not be deemed to have made, any representation or warranty with respect to any part or all of the Subject Property Information. The parties acknowledge that a Memorandum of Real Estate Purchase Option Agreement by and between Legends and Sustainable Property Holdings, LLC, dated June 18 2020, was inadvertently recorded by Legends in Fee No. 20200101218, Records of Pinal County, Arizona, as to Exception Area No. 1 on Exhibit G, and will be released as to such parcel prior to the Closing.
i. There are no existing prior assessments of any kind or nature due or payable on or prior to the date hereof against the DRHE Property or any part thereof, and, to Seller’s Knowledge (except as may be described by the Subject Property Information), there are not presently pending any special assessment or condemnation actions against the DRHE Property or any part thereof, and Seller has not received any notice of any assessment or condemnation actions being contemplated; provided that any assessment which is pending or becomes a Lien against the DRHE Property prior to the Closing shall be satisfied by Seller prior to or at the Closing, except as set forth in this Agreement or otherwise agreed in writing by Seller and no claims therefor exist;Buyer.
j. To Seller’s Knowledge, and except: (i) as may be disclosed on Exhibit D or elsewhere in connection with this Agreement, (ii) the Title Exceptions, (iii) the Specific Recorded Property Documents, (iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plansXxxxxx Mining Lease, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list the contracts or agreements by which Seller or its predecessors or affiliates acquired the Subject Property, there are no leases, contracts, permits, warranties, licenses, or bonds to which the DRHE Property will be subject to following the Closing (collectively, the “Contracts”); provided however, that, in the event of all employees who are employed by the Seller as of the date hereofany such Contracts, and said list correctly reflects their salariesif Buyer elects to assume such Contracts, wagesthe same shall be transferred, assigned and/or conveyed to Buyer, to the extent such Contracts are transferrable, assignable or conveyable, upon the Closing for no additional consideration; provided further that nothing in this subparagraph shall be deemed to create any liability or duty of Buyer to accept and/or assume any such Contract; provided further, however, Buyer shall accept and assume all matters of record including without limitation the obligations regarding royalty interests and other compensation (other than benefits under obligations contained on Exhibit D, the employee welfare, benefit Xxxxxx Mining Lease and similar plans), dates of employment the Specific Recorded Property Documents. Seller and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its Seller’s officers, directors, shareholders, employees.
(o) Except , representatives or agents, do not make and expressly disclaim, any representations or warranties regarding the Subject Property or the Subject Property Information except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this AgreementSection 13, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awardswhether in writing or communicated orally, and the common lawSubject Property is sold “AS-IS, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsWHERE-IS AND WITH ALL FAULTS.”
Appears in 1 contract
Samples: Option Agreement for Purchase and Sale (Ivanhoe Electric Inc.)
Seller’s Representations and Warranties. Each of the parties comprising the Seller jointly and severally represents and warrants to Purchaser that, to the best of Seller's knowledge Buyer and except agrees with it as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws each of the State of Louisiana. Seller Sellers has all necessary power due and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedulesufficient right, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement on the terms and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except subject to the extent that enforcement may be affected by laws relating conditions herein set forth and to bankruptcy, reorganization, insolvency collectively transfer the legal and creditors' rights beneficial title and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance ownership of the transactions contemplated by Euroclub Shares to the Buyer free from all restrictions and claims or as otherwise stated in this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.;
(db) No consentthe Sellers and/or Euroclub have incurred no obligation or liability, authorizationcontingent or otherwise, order for brokers; or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller finders’ fees in respect of the transactions contemplated by this Agreement for which the Buyer or Euroclub will have any obligation or liability whatsoever;
(c) Euroclub is not indebted to the Sellers or any affiliate, or any director or officer of Euroclub or any affiliate other than as disclosed in the Euroclub Financial Statements, which Statements include a debt agreement with Big Stack Technology Inc.;
(d) no payments of any kind have been made or authorized since the date of the Closing Financial Statements to or on behalf of the Sellers or to or on behalf of officers, directors, shareholders or employees of Euroclub or under any management agreements with Euroclub save and Seller's Ancillary Documents.except in the ordinary course of business and at the regular rates of salary or management fees payable to them and as fully prior disclosed in writing to the Buyer;
(e) Neither upon the execution Closing, Buyer will have good, valid and delivery marketable title to the Euroclub Shares free and clear of this Agreement all Encumbrances and Seller's Ancillary Documents by Sellerof all rights of creditors under applicable bulk sales, nor the consummation by Seller bankruptcy or insolvency legislation or of the transactions herein contemplatedany trustee appointed thereunder and none of Sellers will have any interest, will conflict with legal or result beneficial, direct or indirect, in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.Euroclub Shares;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indentureoption, mortgageunderstanding or commitment or any right or privilege capable of becoming an agreement, debenture, note or other instrument under for the terms purchase of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (Euroclub Shares other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Share Exchange Agreement (Sterling Group Ventures Inc)
Seller’s Representations and Warranties. Each Seller represents and warrants to Purchaser that, in each case only as to itself and its Property (and not any other Seller or any other Property), as of the best of Seller's knowledge and except as set forth in the Disclosure ScheduleEffective Date:
(a) such Seller is a limited partnership in commendaman entity, is duly organizedformed, organized or created, as the case may be, validly existing and in good standing, standing under the laws of the State jurisdiction of Louisiana. Seller its formation, organization or creation, as the case may be, and has all necessary the power and authority to conduct the Business as the Business is now being conductedown, collectively, legal and beneficial ownership of its Property, and enter into and perform all duties and obligations imposed on such Seller under this Agreement.
(b) Except as set forth in such Seller has the Disclosure Schedule, Seller holds good power and marketable title authority to the Purchased Assets, free operate and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionslease its Property and to carry on its business, and all items is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of Equipment, Inventory and other personal its business or its ownership or leasing of property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquentrequires such qualification.
(c) such Seller has full partnership power is, and authority will continue to enter into be at Closing, the beneficial owner of its Real Property, subject only to the Permitted Encumbrances;
(d) such Seller’s general partner is, and perform under will continue to be at Closing, the registered owner of its Real Property, subject only to the Permitted Encumbrances;
(xe) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and been duly executed and delivered by general partners of such Seller so authorized. This Agreement and constitutes a legal, valid and legally binding obligation of Selleragreement, enforceable against such Seller in accordance with its the terms (except thereof, subject only to the extent that enforcement may be affected by any limitation under applicable laws relating to (i) bankruptcy, reorganizationwinding-up, insolvency insolvency, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditors' rights ’ rights, and by (ii) the availability discretion that a court may exercise in the granting of injunctive relief, equitable remedies such as specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.;
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which such Seller is or has been not a party are properly reflected therein.non-resident of Canada within the meaning of the Income Tax Act of Canada and Seller is a registrant for the purposes of any taxes imposed under Part IX of the Excise Tax Act, R.S., 1985, c. E-15;
(g) Complete and accurate copies to the Knowledge of such Seller, except as disclosed to the audited balance sheetsPurchaser on or before the Effective Date, statements in writing, there are no parties in possession of, or claiming any possession to, any portion of income and retained earningssuch Seller’s Real Property, statements of cash flowsother than pursuant to the Leases, and notes there are no other leases, or service contracts, maintenance agreements or other contracts relating to financial statements (together with any supplementary information thereto) of Selleror otherwise encumbering the Real Property, all as of and for other than the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, Permitted Encumbrances and the results of operations and cash flows of Seller for the respective periods covered Contracts (which Contracts shall be terminated by said statements, Sellers prior to Closing in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.Section 4.3 above);
(h) Complete and accurate copies to the Knowledge of such Seller, the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven Rent Roll (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller which is effective as of the date thereofindicated thereon) is true, correct and complete in all material respects as it relates to such Seller’s Property, and includes all Tenant deposits in respect of such Seller’s Property, with no concessions, discounts or other periods of free or discounted rent having been given to any tenant in respect thereof save and except as disclosed in the results Rent Roll. The Rent Roll shall be updated and recertified in respect of operations such Seller’s Property by such Seller, at Closing, and shall at such time, to the Knowledge of Seller for such Seller, be true, correct and complete in all material respects with no concessions, discounts or other periods of free or discounted rent having been given in respect of such Seller’s Property, save and except as disclosed in the period covered by said statements, in accordance with GAAP, consistently applied.Rent Roll;
(i) The Disclosure Schedule lists all existing Permits save and except as disclosed to Purchaser on or before the Effective Date, such list Seller is complete not party to any agreements with any department of buildings, fire, labor, health or other federal, provincial, county, municipal or other departments and correct in all material respects; governmental agencies, authorities, courts, and officers, having jurisdiction over and affecting such Seller’s Real Property (iiincluding without limitation, those having jurisdiction over environmental matters) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to(collectively, the food Governmental Authorities), other than Permitted Encumbrances, or as otherwise disclosed in writing and beverage licenses required delivered to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.Purchaser;
(j) to the Knowledge of such Seller, such Seller has not suffered violated or been threatened with breached, in any material adverse change in the businessrespect, operations, assets, liabilities, financial condition or prospects any of the Business, including, without limiting the generality of the foregoing, the existence terms or threat conditions of any labor disputePermitted Encumbrance in respect of such Seller’s Property, or and to the Knowledge of such Seller, all the covenants to be performed by any material adverse change in, or loss of, any relationship between Seller and any other party to the Permitted Encumbrances in respect of its customers, suppliers or key employees.such Seller’s Property have been fully performed;
(k) The Disclosure Schedule correctly save and completed lists except as expressly provided in Section 4.6 above, all accounts that are due and describes all material contractsowing for work or services performed or materials placed or furnished upon or in respect of the construction, leasescompletion, repair, renovation or maintenance of such Seller’s Real Property will on Closing be paid to date (including, for greater certainty, in respect of each of the Xxxxxxx Construction Contract and the Xxxxxx Construction Contract), and agreements at Closing, there will be no such due and owing accounts that could result in the filing of any encumbrance or lien against the such Seller’s Real Property;
(l) save and except as disclosed to which Seller is a party and which relate to the conduct Purchaser in respect of the BusinessXxxxxxx Property, such Seller has no Knowledge of, nor has such Seller received any written notice of, any violation of any applicable laws from any Governmental Authorities concerning such Seller’s Real Property, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged outstanding work orders or unsatisfied written deficiency or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms non-compliance notices in respect of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.Seller’s Real Property;
(m) Except such Seller has no Knowledge of, nor has such Seller received written notice from any governmental authority as disclosed of the Effective Date regarding any change to the zoning classification, any condemnation, expropriation or similar proceedings pending or threatened against such Seller’s Real Property, or any proceedings to widen or realign any street or highway adjacent to such Seller’s Real Property that have a material adverse impact on use of such Seller’s Real Property for its current use;
(n) such Seller has not received any written notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the Disclosure Scheduleperformance of any material work or alterations with respect to such Seller’s Real Property;
(o) save and except for any normal course process for establishing an applicable tax rate, assessed value or annual tax payable, there are no commissions appeals, claims, actions, suits, or referral fees relating to the Business currently outstandingproceedings pending, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best Knowledge of such Seller's knowledge, threatened against such Seller relating to realty taxes, local improvement or directly affecting capital charges, sewer taxes, special levies or assessments, or other rates or charges of a similar nature (collectively, the “Realty Taxes”) associated with or pertaining to such Seller’s Real Property (save and except for appeals initiated by such Seller) and such Seller does not have Knowledge of any valid basis for any such claim, action, suit, proceeding, investigation or discussion;
(iiip) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller Knowledge of such Seller, except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior disclosed to the Seller's hiring a person not previously employed by Purchaser on or before the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceedingEffective Date, in law or in equitywriting, and there are no actions, suits, arbitrations, alternative dispute resolution processes, or administrative or other proceedings by or governmental investigations before any commission Governmental Authorities or other administrative authorityperson, pending, or, to the best Knowledge of such Seller's knowledge, threatenedwhich relate to such Seller’s Property, against and such Seller has no Knowledge of any valid basis for any such action, suit, arbitration process or its Affiliatesproceeding. Save and except as disclosed to Purchaser in respect of the Xxxxxxx Property, or to the Knowledge of such Seller, there are no investigations by any Governmental Authorities in progress with respect to the consummation such Seller’s Property and such Seller has no Knowledge of the transaction contemplated herebyany valid basis for any such investigation. Such Seller is not subject to any judgment, order or the use decree entered in any lawsuit or proceeding nor has such Seller settled any claim prior to being prosecuted in respect of the Purchased Assets (whether used by Purchaser after the Closing it. Such Seller is not a plaintiff or by Seller prior thereto)complainant in any action, suit, arbitration, alternative dispute resolution process or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality proceeding arising out of or absence of or defects in connected with Such Seller's products or services.’s Property;
(q) such Seller is does not a party to, or bound by, employ any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.individual at the Real Property;
(r) Seller is not in violation ofto the Knowledge of such Seller, or delinquent all Due Diligence Items delivered by Sellers to Purchaser in respect toof such Seller’s Property are true, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes correct and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of complete in all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.material respects;
(s) such Seller has not entered into any union or collective bargaining agreements with respect to, or which will impact any owner of such Seller’s Real Property; and
(t) except as disclosed to the Purchaser on or before the Effective Date, in writing, such Seller has not, as of the Effective Date, received notice of any environmental contamination on, at or adjacent to such Seller’s Real Property, nor does such Seller have Knowledge of any environmental contamination on, at or adjacent to such Seller’s Real Property, or of any contravention of any environmental law applicable to such Seller’s Real Property. For all purposes of this Section 6.2 and 6.3, and for all purposes in the Sellers’ Bring-down Certificate, “Knowledge of Sellers” or representation or warranty that “Sellers has no Knowledge of” and any other qualification of a representation or warranty in this Section 6.2 as to Knowledge of a Seller or the Sellers or that a Seller or the Sellers have no Knowledge of (referred to herein as a Knowledge Qualification), means the actual knowledge (and not constructive, implied or imputed knowledge) of Xxxxxx Xxxxxx, without inquiry. Sellers shall deliver a certificate to Purchaser at Closing certifying to Purchaser (in the case of each Seller, in respect of itself and its Property only) that all of the Purchased Assets foregoing representations and warranties in this Section 6.2 are materially true, subject to any Permitted Qualifications, as of the Business are in compliance with all Environmental Laws Closing Date (as herein defined) and any Environmental Permits (as herein definedthe Sellers’ Bring-down Certificate). A copy In the event that the Purchaser advises Xxxxxx Xxxxxx (or is obligated to advise the Sellers in accordance with Section 6.5) of facts regarding the Property after the Effective Date or Xxxxxx Xxxxxx otherwise becomes aware of facts as a result of Purchaser’s investigations or by receipt of any noticereports or other documentation generated by or for Purchaser after the Effective Date, citationand Xxxxxx Xxxxxx was not aware of such -16- facts on the Effective Date, inquiry or complaint which Seller has received Sellers shall be entitled to include such facts as qualifications (Permitted Qualifications) in the past three years of Sellers’ Bring-down Certificate to any alleged violation of any Environmental Law representation or Environmental Permit warranty that is attached subject to a Knowledge Qualification in this Section 6.2 and such Permitted Qualifications shall apply to the Disclosure Schedulecondition in Section 6.3. Seller possesses all Environmental Permits which are required for the operation All of the Business, foregoing representations and is warranties expressly shall survive the Closing for a period of one (1) year and no claims may be made in compliance with the provisions respect of all a breach of such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances representations or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Lawswarranties thereafter.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. In order to induce Xxxxx to enter into this Agreement, Seller covenants, represents and warrants to Purchaser thatBuyer as of the Effective Date and as of the date of Closing, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership has not received any notice of any violation of any ordinance, regulation, law or statute of any governmental agency pertaining to the Property, or any portion thereof, which has not been complied with in commendam, duly organized, validly existing and full or that has not been disclosed to Buyer in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.writing;
(b) Except as set forth Seller has not received any notice from any insurance company, governmental agency or other person of any defects or inadequacies in the Disclosure ScheduleProperty, Seller holds good or any part thereof, which would materially and marketable title adversely affect the insurability or usability of the Property which has not been complied with in full or that has not been disclosed to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.Buyer in writing;
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners There are not presently pending any condemnation actions or special assessments of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance any nature with its terms (except respect to the extent that enforcement may be affected by laws relating to bankruptcyProperty, reorganizationor any part thereof, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance nor has Seller received any notice of any governmental body condemnation actions or agency prohibiting Seller's executionspecial assessments being contemplated, delivery and performance nor does Seller have any knowledge of the transactions any being contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made that has not been disclosed to Buyer in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.writing;
(d) No consentthird parties have any right, authorization, order title or approval of, interest in and to the Real Property or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller portion thereof except those who may have rights pursuant to any of the transactions contemplated by this Agreement and Seller's Ancillary Documents.Permitted Exceptions;
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, subject to or bound byby any agreement (non- competition or otherwise) with any person, or any unexpiredjudgment, undischarged order, writ, injunction or unsatisfied written decree of any court or oral contractgovernmental body which could prevent or impair (i) the effect of Seller's execution and delivery of this Agreement, agreementor (ii) Seller's performance hereunder, indentureas contemplated herein. There are no agreements, mortgagecommitments or understandings by or between Seller and any third party pursuant to which Seller or its successors-in-interest are required to dedicate any part of the Real Property, debentureor to grant any easement, note water rights, rights of way, road or license in respect to any part of the Real Property;
(f) Seller has not entered into any lease, license or other instrument under occupancy agreement for the terms Real Property or any portion thereof;
(g) At Closing, all Improvements and any debris will have been removed from the Real Property;
(h) That Seller is the owner of which performance by the Real Property and Seller according shall convey good, marketable and merchantable title to the terms of this Agreement will be a default or an event of accelerationReal Property to Buyer at Closing by special warranty deed, or whereby timely performance by Seller according subject only to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:Permitted Exceptions;
(i) At Closing, there is will be no pending unpaid bills or threatened unfair labor practice charges claims, nor any mechanics' or employee grievance charges;
(ii) there is no request for union representationmaterialmen's liens against the Real Property; all debts, labor strikeliabilities and obligations of Seller arising from the ownership and operation of the Property have been paid as they become due, disputeand all debts, slowdown liabilities or stoppage actually pending or, obligations of Seller with respect to the best of Seller's knowledgeProperty (whether known, threatened against unknown, accrued, absolute, contingent or directly affecting Seller;
(iiiotherwise) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller outstanding as of the date hereofof Closing will then be paid by Seller in full;
(j) Seller is and will be duly and legally authorized and permitted to enter into this Agreement and to carry out and perform all covenants to be performed by it hereunder, and said list correctly reflects their salaries, wages, that its right to execute this Agreement is not limited by the existence of any other compensation (other than benefits under contracts or agreements whatsoever and the employee welfare, benefit and similar plans), dates individual executing this Agreement on behalf of employment and positions.Seller had been duly authorized to do so;
(vik) As of That no violations exist concerning any covenants, conditions or restrictions affecting the date of this AgreementProperty;
(l) There are no claims, actions, suits or other proceedings pending or threatened by any governmental department or agency, or any other corporation, partnership, limited liability company, entity or person, nor any voluntary actions or proceedings contemplated by Seller has 136 full-time active employees which in any manner or to any extent would detrimentally affect Buyer's right, title and interest in and to the Property, the future operation of the Businessbusiness conducted thereon, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation value of the transaction contemplated herebyProperty, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its Seller's obligations hereunder.contemplated herein, or which question the validity or enforceability of the transaction contemplated herein. Seller has no knowledge of any existing or threatened action, suit or proceeding affecting the Property or any portion thereof or relating to, or arising out of the ownership, management or operation of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, agency or other governmental instrumentality;
(m) Seller is a "United States person" within the meaning of Section 1445 of the Internal Revenue Code, as amended;
(n) All sales taxes, rental taxes and real and personal property taxes due and payable with respect to the Real Property, if any, have been paid and those outstanding as of the date of Closing will be paid by Seller in full;
(o) That all of the Contracts shall be cancelled by Seller prior to Closing without liability to Buyer;
(p) There are no material claims pending orThe Real Property in all respects is in compliance with all federal, to the best State of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or Arizona and local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes ordinances and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employmentenvironmental protection, occupational health and safety, wages public health and hours safety or public nuisance or menace; and discriminationthe Real Property has never been used to manufacture, store or dispose of toxic or hazardous substances, materials or waste covered by the Resource Conservation and zoning ordinances Recovery Act or the Comprehensive Environmental Response, Compensation and building codesLiability Act of 1980, as amended and reauthorized, the Arizona Environmental Quality Act, and/or any other laws, ordinances, codes and regulations pertaining to public health and safety;
(q) Seller will provide updated information before and after Closing as to all of Seller's warranties and representations. Copies Seller further warrants that its representations and warranties will survive and not be waived by Xxxxx's receipt of all notices of violation this information or by any investigation by Xxxxx;
(r) Seller: (i) is not acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by an Executive Order or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or any other banned or blocked person, group, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of the foregoing which Foreign Assets Control; and (ii) is 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. Seller has received within the past three years are attached hereby agrees to the Disclosure Schedule.provide Buyer, upon request, identifying information and other information reasonably requested by Xxxxx in its efforts to comply with such laws, orders, rules or regulations; and
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached disclosed to the Disclosure Schedule. Seller possesses Buyer all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued material matters known to Seller are attached to affecting the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental LawsProperty.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) 13.1. Seller is a limited partnership in commendam, corporation duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaDelaware and has the corporate power and authority to own, lease and operate the Properties and is duly qualified to do business as a foreign corporation and in good standing in the States in which the Properties are situate. Seller has all necessary requisite corporate power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good execute and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of consummate the transactions contemplated hereby and to perform all the terms and conditions hereof to be performed by this Agreementit. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents by Seller and the consummation by Seller of the transactions contemplated hereby have been duly authorized and approved by this all necessary corporate action. This Agreement is a legal, valid and binding obligation of Seller enforceable against it in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting creditors' rights generally and by general equity principles.
13.2. This Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement hereof by Seller do not, and Seller's Ancillary Documents by Sellerthe fulfillment and compliance with the terms and conditions hereof, nor and the consummation by Seller of the transactions herein contemplated, contemplated hereby will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.not:
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; violate or conflict with any provision of Seller's corporate charter or other organizational or governance documents of Seller;
(ii) such Permits constitute all violate or conflict with any provision of the Permits currently necessary for the ownership and operation of the Businessany law or regulation or any judicial, including but not limited toadministrative or arbitration order, the food and beverage licenses required award, judgment, writ, injunction or decree applicable to sell and serve food and liquor; or binding upon Seller;
(iii) no except as set forth on Schedule 13.2, conflict with or ------------- result in a material breach of, constitute a default has occurred in the due observance under (whether with notice or performance lapse of any requirements time or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor disputeboth), or any material adverse change inaccelerate or permit the acceleration of performance required by, or loss ofrequire any consent or approval under (except for the filings under the HSR Act), any relationship between Seller and any of its customerslaw, suppliers order, judgment, decree, permit or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements Assigned Contract to which Seller is a party or by which it is bound or to which any of the Properties, Personalty or Petroleum Inventory is subject except for violations, conflicts and breaches the adverse consequences of which relate are, individually and in the aggregate, immaterial to the conduct Purchased Assets; or
(iv) result in the creation of or imposition of any lien upon any of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)Purchased Assets.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed13.3. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there There are no commissions claims, actions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually proceedings pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) Seller relating to the employment of each transfer of the Seller's employees is terminable Purchased Assets as contemplated herein, Seller has no knowledge of any facts that would prohibit Seller from the selling the Purchased Assets.
13.4. Seller has, and upon consummation of the transactions contemplated under this Agreement at the Closing, Buyer will without cost have, good, valid and marketable title to 100% interest in the Seller Purchased Assets (other than any leased property in which case Buyer shall have the valid right to possession of the same pursuant to valid leases or other agreements) subject to all interests, leaseholds, easements, encumbrances, liens, defects and special assessments of record which do not materially adversely affect marketability or the current use of the Properties, including those set forth in Schedule 13.4. -------------
13.5. There are no material Assigned Contracts that affect or may affect the operations, management or maintenance of the Properties, except for the Assigned Contracts set forth in Schedule 13.5 and Assigned Contracts cancelable ------------- upon thirty (30) days' notice.
13.6. Except as set forth in Schedule 13.6(a), Seller is not in, nor has ----------------- it received written notice of, default in any material respect under any of the Assigned Contracts, Term Contracts, rights-of-way or easements to which it is a party, or by which it or the Properties are bound. All such Assigned Contracts, Term Contracts, rights-of-way and easements represent valid, binding and enforceable agreements of the parties thereto subject to applicable bankruptcy, insolvency, or other similar laws relating to or affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). Seller has made available to Buyer true, correct and complete copies of all Assigned Contracts, Term Contracts, rights-of-way and easements affecting the Properties, as currently operated, in any material respect. Any payments required under Seller's employee benefit plans, employee welfare plans the rights of way and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided easements after the Closing are reflected in Section 2.3, aboveSchedule 13.6(b). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) ----------------- Except as set forth on Schedule 13.6(c), each Assigned Contract, right-of-way ----------------- and easement may be assigned to Buyer without the Disclosure Scheduleconsent of a third party.
13.7. The Properties and Personalty, there is no litigation or proceedingtaken as a whole, have been maintained and operated in accordance with Seller's normal operating practices and are in good operating condition, repair and maintenance, subject only to ordinary wear and tear.
13.8. The books and records of Seller pertaining to the Purchased Assets have been maintained in accordance with good business practices and all historical and current expenses and revenues of the Properties have been recorded in accordance with generally accepted accounting principles and fairly and accurately present the expenses and revenues of the Properties, except where projections have been made, in law which case the assumptions upon which the projections have been based are noted therein or based upon normal budgeting practices.
13.9. The Purchased Assets (including the Assigned Contracts and Permits), taken as a whole, will permit in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation their condition as of the transaction contemplated herebyClosing Date, or the use operation of the Purchased Assets (whether used by Purchaser Buyer immediately after the Closing or by Seller prior thereto), or which would restrict or interfere in a manner consistent with Seller's ability to perform its obligations hereunderpast practices.
(p) There 13.10. Except as set forth in Schedule 13.10, there are no material claims -------------- claims, actions or proceedings pending or, to the best knowledge of Seller's knowledge, anticipated or threatened against Seller with respect relating to the quality of or absence of or defects in Seller's products or servicesPurchased Assets to be transferred to Buyer.
13.11. Intentionally left blank.
13.12. Schedule 13.12(a) sets forth an accurate and complete list of all ----------------- material permits, licenses and governmental approvals necessary to operate the Properties as is (q"Material Permits") (other than Permits under Environmental Law). Except as specified in Schedule 13.12(b), (i) all Material Permits (other ----------------- than Permits under Environmental Law) relating to the Purchased Assets as currently operated are in effect and (ii) Seller is not a party tohas, to the extent required, made all filings necessary to request the timely renewal or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect issuance of all Material Permits necessary prior to its properties, assets, personnel or business activitiesthe Closing for Seller to own and operate the Purchased Assets as currently operated.
(r) 13.13. Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or will execute all documents reasonably required to which any effect the transfer of the Purchased Assets, any whether at the Closing or after.
13.14. The representations and warranties in this Article 13 do not apply to facts, events, circumstances or conditions which constitute Environmental Liabilities. Buyer's sole remedies for Environmental Liabilities are set forth in Article 9.
13.15. The representations and warranties of Seller contained in Paragraphs 13.2 - 13.6, 13.8 and 13.13 will survive for a period of three (3) years after the Closing Date. The remaining representations and warranties contained in this Article 13 will not survive the Closing. Seller will defend and indemnify Buyer against all claims, liabilities, damages or expenses (including attorney's fees and expenses of litigation) resulting from a breach or misrepresentation of the representations and warranties. Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleaggregate maximum liability under this Article 13 shall not exceed $2,649,000.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. (a) Seller represents and warrants to the Purchaser and the Company that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(ai) Seller is a limited partnership in commendam, corporation duly organized, validly existing formed and in good standing, standing under the laws of the State of LouisianaDelaware. Seller has all necessary the corporate power to enter into and authority perform this Agreement in accordance with its terms. The execution, delivery and performance of this Agreement, including the sale of the Sale Membership Interests to conduct the Business Purchaser as contemplated hereby, has been duly authorized by the Business is now being conductedSeller and the Company.;
(bii) Except This Agreement has been duly executed and delivered by the Seller and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject to bankruptcy, reorganization, and other similar laws affecting the enforcement of creditors’ rights generally and to general equity principles;
(iii) Schedule II is a true, correct, and complete list of all Organizational Documents of the Company;
(iv) The sale of the Sale Membership Interests as set forth in contemplated hereby does not violate any preemptive or similar rights of any person under the Disclosure ScheduleOrganizational Documents of the Company or any agreement, arrangement or other understanding to which either the Seller holds or the Company is a party or by which either of them is bound or the Sale Membership Interests are subject;
(v) Seller has good and marketable valid title to the Purchased AssetsMembership Interests, including the Sale Membership Interests, free and clear of all mortgagesliens, options, lienspledges, charges, easementssecurity interests, agreementsrights of first refusal, claimspurchase options, rights, restrictions or other encumbrances Encumbrances of any kind or nature other than the Permitted Exceptions, kind;
(b) All representations and all items of Equipment, Inventory and other personal property have been fully paid for, warranties made to the extent that normal business practice permits, except those items identified Seller’s knowledge in this Agreement are made based on the Disclosure Schedule which are subject actual knowledge of Xxxxx Xxxxxxxxxx, without any duty to installment payments review or leases and with respect investigate the matters to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of absence thereof, pertains and with no imputed knowledge whatsoever, whether from any further event or conditionpartner, would become a default by Seller thereunder. Seller has given (or will giveofficer, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leasesdirector, member, shareholder, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees employee of Seller:
(i) there is . Xxxxx Xxxxxxxxxx shall have no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding personal liability arising out of any representations or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Sellerwarranties made herein.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Avalon GloboCare Corp.)
Seller’s Representations and Warranties. Seller hereby represents and warrants that to Purchaser thatSeller’s knowledge, to as of the best Close of Seller's knowledge and except as set forth in the Disclosure Schedule:
Escrow: (a) there is no pending (nor has Seller is a limited partnership in commendamreceived notice of any threatened) action, duly organizedlitigation, validly existing and in good standing, under condemnation or other proceeding against the laws of Property or against Seller with respect to the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
Property; (b) Except as set forth there is no tenant or occupant in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances possession of any kind or nature other than part of the Permitted ExceptionsProperty [If this is not correct, and all items of Equipment, Inventory and other personal property have been fully paid for, to please notify the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
Agency]; (c) Seller is not insolvent and has full partnership power not filed for protection under the bankruptcy laws of the United States; and authority (d) there is no lease, license, permit, option or right of first refusal, written or oral, which affects the Property, except as disclosed in the preliminary title reports. As used herein, the phrase “to Seller’s knowledge,” means the actual (not constructive or imputed) personal knowledge of the management employees of Seller with knowledge of the Property. Seller further represents and warrants that this Agreement shall at the time of its delivery: (i) have been duly authorized, executed, and delivered by Seller; (ii) be the binding obligations of Seller; (iii) be sufficient to transfer all of Seller's right, title and interest in and to the Property; and (iv) not be in violation of the provisions of any agreement to which Seller is a party or which affects the Property. Seller further represents and warrants that the persons who have executed this Agreement on behalf of Seller are duly authorized to do so, that Seller has the legal right to enter into and perform under (x) this Agreement and (y) to perform all documents of its terms and instruments to be executed by Seller pursuant to conditions, and that this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, is enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980terms.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations and Warranties. Seller represents makes the following representations and warrants warranties to Purchaser thatBuyer, to each of which is true and correct as of the best Effective Date and as of Seller's knowledge and except as set forth in the Disclosure ScheduleClosing Date:
(a) Seller Each of Global and TPS is a limited partnership in commendam, duly organized, validly existing and corporation in good standing, standing under the laws of the state of its incorporation and TPS is in good standing and qualified to transact business in the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conductedGeorgia.
(b) Except as set forth in the Disclosure ScheduleSeller has full legal power and authority to enter into, Seller holds good deliver and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionsperform this Agreement, and all items of Equipmentthis Agreement constitutes Seller’s valid and binding obligation, Inventory and other personal property have been fully paid forenforceable in accordance with its terms, except to the extent that normal business practice permitssuch enforceability (i) may be limited by bankruptcy, except those items identified on the Disclosure Schedule which are insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to installment payments general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or leases and with respect to which there are no installments due which are delinquentat law).
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Sellerdoes not conflict with, nor the consummation by Seller of the transactions herein contemplatedviolate, will conflict with or result in constitute a breach of any of default under the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments instrument to which Seller is a party, including but not limited to its Credit and Security Agreement dated April 29, 2008 by and between Global Employment Solutions, Inc., its subsidiaries and Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), or any law, judgment, or order of which Seller is aware, in each case that would materially and adversely affect Seller’s ability to fulfill its obligations under this Agreement or that would materially impair the value of the Assets taken as a whole (a “Material Adverse Effect”); provided that Buyer understands and acknowledges that the transactions contemplated by this Agreement require the consent of (i) certain of Global’s lenders, including Xxxxx Fargo, (ii) certain of Seller’s preferred stockholders and (iii) Global’s and TPS’s board of directors (collectively, the “Required Consents”). The execution and delivery of this Agreement will not result in the creation of any lien, security interest, or encumbrance on any of the Assets.
(d) There are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder andno actions, suits, proceedings, or claims now pending, or, to the best of Seller's ’s knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, threatened against Seller or the happening of any further event or condition, Assets that would become cause a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)Material Adverse Effect.
(le) Seller has good and marketable title to the Assets free and clear of all liens, charges, and encumbrances, other than the Permitted Liens listed on Schedule 5, if any, and any contractual requirement to obtain the consent of a party to a Contract that is being assigned hereunder.
(f) To the best of Seller’s knowledge, all of the Contracts are in full force and effect, have been duly executed by the parties, and neither Seller nor any other party is in material default under any Contract, nor has Seller knowledge that any party to any of these agreements intends to cancel or terminate any of these Contracts.
(g) To the best of Seller’s knowledge, each agreement, instrument, or license with respect to the Intangible Property is in full force and effect, and neither Seller nor any other party is in material default under any such agreements.
(h) Seller is not a party to, or otherwise bound by, any unexpired, undischarged or unsatisfied written or oral contract, collective bargaining agreement, indenturemulti-employer pension fund, mortgage, debenture, note or other instrument under the terms of which performance labor union agreement with respect to any person(s) employed by Seller according to in connection with its operation of the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingGeorgia Business.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there Seller is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationin material compliance with all federal, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereofstate, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit local laws and similar plans), dates of regulations including without limitation I-9 employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in eligibility verification with respect to the operation of the Georgia Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(pj) There are no material claims pending or, undisclosed expenses or liabilities (or pre-closing occurrences or omissions that could reasonably be expected to the best of Seller's knowledge, anticipated or threatened against Seller give rise thereto) being assumed by Buyer with respect to the quality of or absence of or defects in Seller's products or servicesGeorgia Business.
(qk) Seller TPS is not a party towholly-owned subsidiary of Global Employment Solutions, or bound byInc. Global Employment Solutions, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activitiesInc. is a wholly-owned subsidiary of Global.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Global Employment Holdings, Inc.)
Seller’s Representations and Warranties. Seller Each of Sellers jointly and severally represents and warrants to Purchaser thatBuyer that the statements contained in this ss.3 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this ss.3), to the best of Seller's knowledge and except as set forth in the disclosure schedule accompanying this Agreement (the "Disclosure Schedule:"). The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this ss.3.
(a) Seller Organization. Other than Target, each of Parent and Parent's Subsidiaries is a limited partnership in commendam, corporation duly organized, validly existing and in good standing, standing under the laws of the State of LouisianaDelaware. Seller has all necessary power Target is a limited partnership duly organized, validly existing, and authority in good standing under the laws of the State of Delaware. Sellers are duly authorized to conduct business and are in good standing under the Business as the Business laws of each jurisdiction where such qualification is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (required except to the extent that enforcement may any failure to be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or so qualified would not result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or any governmental Material Adverse Effect. Sellers have full power and authority or of any arbitration award.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions licenses, permits, consents, approvals and authorizations necessary to carry on the businesses in which Seller is they are engaged and in which they presently propose to engage and to own and use the properties owned and used by them, except for those licenses, authorizations, permits, consents and approvals the absence of which would not reasonably be expected to have, individually or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Scheduleaggregate, a Material Adverse Effect on Sellers. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(kss.3(a) of the Disclosure ScheduleSchedule lists the directors and officers each of Sellers. Seller shall indemnify Purchaser Sellers have delivered or made available to Buyer correct and complete copies of the certificate of incorporation and bylaws of Parent and the certificate of limited partnership and limited partnership agreement of Target (each as required under Section 1.2 hereofamended to date). The minute books (containing the records of meetings or actions of the stockholders, against losspartners, cost or liability under board of directors, and any contractcommittees), lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party tothe stock certificate books, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or the stock record books and other instrument under records detailing the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment actions of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plansSellers, employee welfare plans as applicable, are correct and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above)complete. No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller Parent is not in violation of, of any provision of its certificate of incorporation or delinquent bylaws. Target is not in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any provision of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleits certificate of limited partnership or limited partnership agreement.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Exercise and Conversion Agreement (Tidel Technologies Inc)
Seller’s Representations and Warranties. (a) Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(ci) Seller has the full partnership power right, power, and authority authority, without the joinder of any other person or entity, to enter into into, execute and perform under (x) deliver this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has beenAgreement, and Seller's Ancillary Documents will be, duly authorized by to perform all necessary partnership action(s), duties and duly executed and delivered by general partners of obligations imposed on Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.,
(dii) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's neither the execution and nor the delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound,
(iii) except as disclosed on Schedule 4.3(a)(iii), there is no existing or pending (or to Seller’s knowledge threatened) litigation affecting Seller or the Property and Seller has not received written notice of any threatened litigation that has not been resolved,
(iv) Seller has no knowledge of, and has not received any written notice of any violation of any governmental requirements (including “Environmental Requirements”, as defined below) concerning the Property, which relate have not been remedied,
(v) Seller has no knowledge of, and has not received, with respect to the conduct Property, written notice from any governmental authority regarding any change to the zoning classification, any condemnation proceedings or proceedings to widen or realign any street or highway adjacent to the Property or that otherwise affects the Land or the Improvements, which have not been completed,
(vi) the list of contracts attached hereto as Exhibit “E” (the “Contracts”), is a true, correct and complete list of all service contracts, equipment leases and/or maintenance agreements affecting the Property, and there are no other such agreements affecting the Property,
(vii) Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the BusinessInternal Revenue Code of 1986, includingas amended,
(viii) except for those tenants in possession of the Property under written leases for space in the Property, without limitation: employment as shown on the rent roll attached hereto as Exhibit “F” (the “Rent Roll”) and employment-three complementary units provided to an owner of Seller and an employee of Seller (the “Complementary Units”), there are no parties in possession of, or, to Seller’s knowledge, claiming any possession to, any portion of the Property. The use and occupancy of the Complimentary Units and any lease agreement related agreements; covenants not to compete; loan agreementssame shall terminate no later than the sixtieth (60th) day following Closing and Seller shall cause the owner and employee occupant to timely vacate the Complimentary Units on or before the sixtieth (60th) day following Closing (the “Termination Date”), notes, provided that said owner and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or employee occupant may sign Purchaser’s standard lease for the Complimentary Units prior to Closing); sales representative, distribution, franchise, advertising the Termination Date and similar agreements; concession pay rent thereunder for a term commencing on the Termination Date,
(ix) at Closing there will be no unpaid bills or occupancy agreements; leases and subleases claims in connection with any repair of realty the Property by or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to on behalf of Seller that could result in this paragraph 4.3(kthe filing of a lien against the Property,
(x) the Rent Roll (which is effective as of the date indicated thereon), and as the same shall be updated and recertified at Closing by Seller, is and shall be true, correct and complete in all material respects and no concessions, discounts or other contracts periods of free or instruments discounted rent have been given other than those reflected on such Rent Roll,
(xi) the financial statements delivered by Seller to Purchaser pursuant to Section 4.1 hereof are true, correct and complete in all material respects,
(xii) except as may be disclosed in any environmental assessment reports delivered by Seller to Purchaser pursuant to Section 4.1 hereof, Seller has no knowledge, and has received no written notice regarding any environmental contamination on, at, or adjacent to at the Property, except as set forth on Schedule 4.3(a)(xii) attached hereto,
(xiii) Seller has not received any written notice or request from any insurance company or board of fire underwriters (or any organization exercising functions similar thereto) requesting the performance of any work or alterations with respect to the Property, except those as to which Seller has completed remedial action,
(xiv) there are no employment agreements of any kind to which Seller is a party, including union or collective bargaining agreements, which will be binding on Purchaser after the Closing,
(xv) except as set forth on attached Schedule 4.3(a)(xv), to Seller’s knowledge, the Improvements were constructed substantially in accordance with the plans and specifications for the construction thereof;
(xvi) except as may be disclosed in any environmental assessment reports delivered by Seller to Purchaser pursuant to Section 4.1 hereof, to Seller’s knowledge, (a) there are no underground storage tanks located on or under the Property, (b) there are no conditions on or at the Property which are in non-compliance with “Environmental Requirements” (as defined below), and (c) there are no “Hazardous Materials” (as defined below) on, in or under the Property in quantities that require reporting, investigation or remediation under Environmental Requirements,
(xvii) to Seller’s knowledge, Seller has obtained all necessary certificates, licenses and other governmental approvals necessary for the operation of the Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller effect as of the date hereof. To Seller’s knowledge, the Property is legally compliant and said conforming with all applicable zoning laws, rules and regulations, and
(xviii) Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Executive Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Executive Order and such other rules, regulations, legislation, or orders are collectively called the “Foreign Asset Orders”). Neither Seller nor any beneficial owner of Seller (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Executive Order and/or on any other list correctly reflects their salariesof terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Foreign Asset Orders (such lists are collectively referred to as the “OFAC Lists”) or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders; or (c) is owned or controlled by, wagesor acts for or on behalf of, any person on the OFAC Lists or any other compensation person who has been determined by competent authority to be subject to the prohibitions contained in the Foreign Asset Orders, 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. Seller shall deliver a certificate to Purchaser at Closing recertifying all of the foregoing representations and warranties to Purchaser as of the Closing Date, such that all such representations and warranties shall be deemed made to Purchaser as of the Closing Date. All of the foregoing representations and warranties expressly shall survive the Closing for a period of one (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions1) year.
(vib) As of the date For purposes of this Agreement, Seller has 136 full-time active employees “Hazardous Materials” shall mean any substance which is or contains (i) any “hazardous substance” as now or hereafter defined in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X. §0000 et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the operation of Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the BusinessToxic Substances Control Act (15 U.S.C. §2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and 31 partasbestos containing materials, in any form, whether friable or non-time employees.
friable; (vi) polychlorinated biphenyls; (vii) Seller has no retirementradon gas; (viii) any radioactive material, pensionincluding any “source material”, profit sharing“special nuclear material” or “byproduct material”, employee welfare as now or employee benefit plans for hereafter defined in 42 U.S.C. §2011 et seq.; and (ix) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under “Environmental Requirements” (as defined below) or the common law, or any other applicable laws relating to the Property. Hazardous Materials shall include, without limitation, any substance, the presence of its employees.
(o) Except as set forth which on the Disclosure ScheduleProperty, there is no litigation (A) requires reporting, investigation or proceedingremediation under Environmental Requirements; (B) any Hazardous Material that causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property or (C) any Hazardous Material, in law which, if it emanated or in equitymigrated from the Property, could constitute a trespass. Further, for purposes of this Agreement, “Environmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and there are no proceedings decrees, now or governmental investigations before any commission or other administrative authorityhereafter prior to Closing enacted, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliatespromulgated, or with respect to the consummation amended, of the transaction contemplated herebyUnited States, the states, the counties, the cities, or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property, or the use of the Purchased Assets (whether used by Purchaser after Property, relating to pollution, the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, protection or regulation ofof human health, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnelnatural resources, or the Business are subject environment, or to which itthe emission, itselfdischarge, is subject)release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, lawsambient air, statutes and regulations relating to equal employment opportunitiessurface water, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleground water or land or soil).
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to Buyer as of the best date of Seller's knowledge this Agreement and except as set forth in of the Disclosure ScheduleClosing Date as follows:
(a) This Agreement has been duly authorized, executed and delivered by Seller and all consents required under Seller's organizational documents or by law have been obtained. All documents that are to be executed by Seller and delivered to Buyer on the Closing Date have been, or on the Closing Date will be, duly executed, authorized and delivered by Seller. This Agreement and all such documents are, and on the Closing Date will be, legal, valid and binding obligations of Seller, enforceable in accordance with their terms and do not, and, at the time of the Closing Date will not, violate any provisions of any agreement or judicial or administrative order to which Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under party or to which Seller or the laws of the State of Louisiana. Seller has all necessary power and authority to conduct the Business as the Business Property (or any portion thereof) is now being conductedsubject.
(b) Except as set forth in the Disclosure ScheduleSchedule 4.1(b) attached hereto, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due actions, suits or proceedings (including arbitration proceedings) pending or to the best of Seller's knowledge, threatened against Seller which are delinquentcould have a material adverse effect on any portion of the Property, Seller's interest therein, or Seller's ability to perform its obligations hereunder, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality.
(c) Seller has full partnership power and authority to enter into and perform under (xExcept as set forth in Schedule 4.1(c) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectivelyattached hereto, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable there are no condemnation actions against Seller in accordance with its terms (except or relating to the extent that enforcement may be affected by laws relating to bankruptcyProperty or any portion thereof, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance nor has Seller received any notice of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980contemplated.
(d) Except as set forth in Schedule 4.1(d) attached hereto, the Property complies with all zoning, building, environmental, ecology, health and public safety, subdivision, land sales or similar law, rule, ordinance or regulation, pertaining to the Property or any portion thereof. No consent, authorization, order consent or approval of, or filing or registration with, is required from any governmental authority agency for Buyer to own or operate the Property, as the same is currently operated and used. No governmental, fire, life safety or other person inspection is required for Seller's execution in connection with the transfer and delivery no new certificates of this Agreement and Seller's Ancillary Documents and occupancy are required to be issued in connection with the consummation by Seller transfer of the transactions contemplated by this Agreement and Seller's Ancillary DocumentsProperty.
(e) Neither There are no leases, licenses, occupancy or related agreements or tenancies affecting the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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 awardProperty.
(f) SellerThere are no written agreements with any real estate broker, leasing agent or other party (including, without limitation, the current manager of the Property, if any), that entitle or will entitle such real estate broker, agent or other party to any leasing or other brokerage commission or payment or finder's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been fee as a party are properly reflected thereinresult of any tenancy existing as of the date of this Agreement.
(g) Complete Except as listed on Schedule 4.1(g) there are no Property Contracts related to the use, ownership or operation of the Property. Seller shall deliver true, correct and accurate complete copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes all Property Contracts listed on Schedule 4.1(g) to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, Buyer in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies the terms of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.Section 5.2 of this Agreement;
(h) Complete and accurate copies No material licenses, permits and/or other approvals required for the ownership of the unaudited balance sheet, statement of income existing use and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as operation of the date Property or any portion thereof, have been terminated, suspended or otherwise are not in full force and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedeffect.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which Seller has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from that it is in default under any source to the effect that there is lacking any Permit needed in connection with the operation of the Business covenants, easements or restrictions affecting or encumbering the Property or any restaurant, bar, gift shop constituent or other operation connected therewithportion thereof.
(j) Seller has not suffered generated, stored or been threatened disposed of any oil, petroleum products, or "Hazardous Materials", as defined under New Hampshire or United States laws or regulations (collectively, "Hazardous Materials") at the Real Property or Improvements and, except as disclosed in reports listed on Schedule 4.1(j), Seller has no actual knowledge of any previous or present generation, storage, disposal or existence thereof, except for de minimis amounts of materials such as cleaning supplies typically found at properties similar to the Property. A list of all environmental reports of which Seller has knowledge is set forth in Schedule 4.1(j) attached hereto. Except for those environmental reports listed on Schedule 4.1(j), (i) Seller has not entered into any consent decree or administrative order for any alleged violation of laws relating to so-called Hazardous Materials; (ii) Seller has not received any written request for information or a demand letter from any party with any material adverse change in respect to a violation of laws pertaining to Hazardous Materials; and (iii) to the businessbest of Seller's knowledge and belief, operations, assets, liabilities, financial condition no current or prospects prior user or occupant of the BusinessProperty has generated, including, without limiting the generality of the foregoing, the existence stored or threat disposed of any labor dispute, Hazardous Materials at the Property or transported any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employeesHazardous Materials off site from the Property except in accordance with applicable law.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements Seller has not entered into any other contracts for the sale of the Property or any constituent or portion thereof. No agreement affecting the Property contains any rights of first refusal or options to which purchase the Property or any portion thereof or any other rights of others that might prevent the consummation of this Agreement.
(l) Neither Seller nor any constituent partner thereof is a party and which relate to the conduct foreign corporation, foreign partnership or foreign estate (as such terms are defined in Section 1445 of the Business, including, without limitation: employment Internal Revenue Code). Seller shall provide Buyer with an affidavit to this effect at Closing.
(m) No portion of the Property is part of any other tax lot and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases no property of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contractsanother is included in the tax lot of any of the Property. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder received no notice of any pending special assessments by the taxing authority and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions not special assessments pending or referral fees relating to the Business currently outstanding, nor will there be being contemplated by any such commissions or referral fees outstanding, on or after the Closing Datetaxing authority.
(n) With respect to employees of Seller:
(i) there is no pending Seller has delivered or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representationwill deliver in accordance with Section 5.2 below, labor striketrue, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending correct and no claims therefor exist;
(iv) the employment complete copies of each of the Seller's employees is terminable at will without cost items requested by Buyer pursuant to Schedule 5.2. The representations, warranties and statements contained in this Agreement and in the certificates, exhibits and schedules delivered by Seller except for payments to Buyer pursuant to this Agreement do not omit to state a material fact required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior stated therein or necessary in order to the Seller's hiring make such representations, warranties or statements not misleading in a material respect to a reasonable person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as in light of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits circumstances under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, which they were made. There are no facts known to Seller has 136 full-time active employees which presently or may in the operation of future have a material adverse effect on the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare Property which have not been specifically disclosed herein or employee benefit plans for any of its employeesin a schedule furnished herewith.
(o) Except as set forth on The Seller owns the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, Property free and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies clear of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Scheduleencumbrances except as listed on Schedule 4.1(o).
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Haights Cross Communications Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulewarrants:
(a) 5.1.1 Seller is a limited partnership in commendamcorporation duly organized and validly existing, duly organized, validly existing and in good standing, under the laws of the State Commonwealth of LouisianaPennsylvania. Seller has all necessary the corporate power and authority to conduct the Business own its property and to carry on its business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good conducted and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) to carry out the terms of this Agreement.
5.1.2 The execution and delivery of this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, the consummation of the transactions contemplated hereby have been duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners corporate action on behalf of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of SellerSeller is not subject to any charter, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no by-law, rulelien, regulation or ordinance encumbrance of any kind, agreement, instrument, order, or decree of any court or governmental body or agency prohibiting Seller's execution, delivery and performance (other than any governmental approval required) which would prevent consummation of the transactions contemplated by this Agreement. .
5.1.3 The sale Segregated Lease is not subject to any preferential right to purchase or right of first refusal in favor of any third party.
5.1.4 Seller's operations on the Segregated Lease have been conducted as a prudent operator and in accord with all applicable rules or regulations of governmental bodies.
5.1.5 Seller has the right to assign the Physical Assets, except as to contract rights of which it has previously advised Buyer.
5.1.6 Seller has incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of this transaction contemplated by this Agreement for which Buyer shall have any responsibility whatsoever.
5.1.7 No suit, action or other proceeding is being made pending or threatened before any court or governmental agency which might result in connection with the winding-up of Seller as contemplated under Section 13.02(f) impairment or loss of Seller's Articles title to any part of Partnership In Commendam dated as the Assets or the value thereof or which might hinder or impede the operation of May 1the Assets, 1980and Seller shall promptly notify Buyer of any such proceeding arising or threatened prior to the Closing.
(d) No consent, authorization, order 5.1.8 Seller shall use its best efforts to take or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution cause to be taken all such actions as may be necessary and delivery advisable to consummate and make effective the sale of this Agreement and Seller's Ancillary Documents the Assets and the consummation by Seller of the other transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller assure that as of the date thereofof the Closing it will not be under any material corporate, and legal or contractual restriction that would prohibit or delay the results timely consummation of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedsuch transactions.
(i) 5.1.9 The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all assignment of the Permits currently necessary for the ownership and operation Segregated Lease shall be made without any warranty of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance title of any requirements kind, express or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source implied, except that Seller shall warrant and defend good and defensible title to the effect that there is lacking any Permit needed in connection with Segregated Lease unto Buyer against every person whomsoever lawfully claiming or to claim the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leasesSegregated Lease, or a detailed description thereofportion thereof by, through or under Seller, but not otherwise, and such assignment shall be made with full substitution and subrogation of Buyer in and to all as described in Section 4.3(kcovenants and warranties by others heretofore given.
5.1.10 Seller shall warrant title to the Physical Assets solely to the extent delivery and acceptance (actual or constructive) of any such Physical Assets by Seller have occurred, and to the Disclosure Schedule. extent Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed has rights and entitlements to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument receive Physical Assets under the terms of which performance by Seller according existing service contracts and purchase orders pertinent to the terms of this Agreement will be a default or an event of accelerationsuch Physical Assets. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, or whereby timely performance by Seller according to the terms of this Agreement may be prohibitedTHE PHYSICAL ASSETS ARE TO BE SOLD AS IS, prevented or delayedAND SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED IN FACT OR BY LAW WHETHER OF OPERATING CONDITION, SAFETY, COMPLIANCE WITH GOVERNMENT REGULATIONS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, CONDITION OR OTHERWISE, CONCERNING ANY OF THE PHYSICAL ASSETS. If any such agreement existsALL XXXXX, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingPERSONAL PROPERTY, MACHINERY, EQUIPMENT AND FACILITIES THEREIN, THEREON AND APPURTENANT THERETO ARE TO BE CONVEYED BY SELLER AND ACCEPTED BY BUYER PRECISELY AND ONLY "AS IS, WHERE IS.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date" SELLER DOES NOT WARRANT THE PHYSICAL ASSETS FREE FROM REDHIBITORY VICES OR DEFECTS.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller hereby represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, Texas corporation duly organizedformed, validly existing existing, and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power Texas having full corporate power, legal right and authority to conduct carry on its business as currently conducted, and to execute, deliver and perform the Business as the Business is now being conducted.provisions of this Agreement;
(b) Except as set forth in the Disclosure Scheduleexecution, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptionsdelivery, and all items performance by Seller of Equipmentthis Agreement, Inventory and other personal property the sale of the Aircraft, have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners action on behalf of Seller so authorized. This and does not conflict with or result in any breach of any of the terms or constitute a default under any document, instrument, or agreement to which Seller is a party;
(c) the person executing this Agreement on behalf of Seller has full power and authority to do so;
(d) this Agreement constitutes a the legal, valid and legally binding obligation obligations of Seller, Seller and is enforceable against Seller in accordance with its terms (terms, except to the extent that enforcement as such enforceability may be affected limited by laws relating to bankruptcy, insolvency, reorganization, insolvency and moratorium or other similar laws of general application relating to or affecting the enforcement of creditors' ’ rights and by the availability of injunctive relief, specific performance and other general equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.principles;
(e) Neither at the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller time of the transactions herein contemplatedClosing, will conflict with or result in a breach the Aircraft shall be free and clear of any of all Liens, and Seller shall has good and marketable legal and beneficial title to the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.Aircraft; and
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions Seller has not entered into any agreement (other than this Agreement) pursuant to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of may be contractually and/or legally obligated to sell, lease, assign or otherwise transfer the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with Aircraft or any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained interest in the Disclosure Schedule. All such financial statements are referred Aircraft to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k)Purchaser.
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Samples: Aircraft Purchase and Sale Agreement
Seller’s Representations and Warranties. The Seller represents and warrants to Purchaser that, Buyer that all employees of Seller and its Affiliates ("Seller Employees") shall for all purposes be deemed to the best of Seller's knowledge be solely employed by Seller (or its Affiliates) and except as set forth in the Disclosure Schedule:
not by Buyer (aor its Affiliates) and that Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, under the laws shall be solely responsible for all aspects of the State employment of Louisiana. such Seller has all necessary power and authority to conduct the Business as the Business is now being conducted.
(b) Except as set forth in the Disclosure Schedule, Seller holds good and marketable title to the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions of Seller's Articles of Partnership In Commendam or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the BusinessEmployees, including but not limited toto promotion, demotion, discipline, vacation, sick pay, paid leave time, unpaid leave time, FMLA (Family and Medical Leave Act), compensation and benefits. In the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in event any claim, complaint, proceeding, litigation or any other legal action arises which contests the due observance or performance employment status of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source Seller Employees, Seller agrees that it shall be exclusively and solely responsible therefor. In addition to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given (or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument indemnification obligations under the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement existsAsset Purchase Agreement, Seller shall terminate such agreement defend, hold harmless and indemnify Buyer (other than those expressly assumed by Purchasertogether with its Affiliates and their respective directors, officers, employees, consultants and agents) at or prior to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to the best of Seller's knowledge, threatened against or directly affecting Seller;
(iii) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
and all claims, damages, costs, fees (o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein definedreasonable attorneys' fees) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination other expenses of any type whatsoeverwhatsoever which may arise out of or relate to any litigation or any other legal action which pertains to the employment, employment status, or employment-related issue concerning any such Seller Employees. The Seller shall maintain and be responsible for all insurance coverage relating to such Seller Employees, including, but not limited to, health and workers compensation insurance. In addition to the foregoing, the Seller represents and warrants that neither Seller, nor any officer or employee, nor, to the knowledge of Seller, any agent of Seller has been convicted of any crime or engaged in any conduct that would reasonably be expected to result in (a) debarment under 21 U.S.C. Section 335a or any similar state law or regulation; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required or (B) exclusion under 42 U.S.C. Section 1320a-7 or are issued pursuant to Environmental Lawsany similar state law or regulation.
Appears in 1 contract
Samples: Transition Services Agreement (Napro Biotherapeutics Inc)
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except as set forth in the Disclosure Schedule:
(a) Seller is a limited partnership in commendam, duly organized, validly existing and in good standing, corporation organized under the laws of the State of LouisianaDelaware and is qualified to do business in the State of California. Seller has the full right, power, and authority, without the joinder of any other person or entity (or the consent of any third parties), to enter into, execute and deliver this Agreement, and to perform all necessary power duties and authority obligations imposed on Seller under this Agreement, except to conduct the Business as the Business is now being conducted.limited extent, if any, specifically and expressly set forth in this Agreement;
(b) Except as set forth in neither the Disclosure Schedule, Seller holds good and marketable title to execution nor the Purchased Assets, free and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither the execution and delivery of this Agreement and Seller's Ancillary Documents by SellerAgreement, nor the consummation by Seller of the transactions herein contemplatedpurchase and sale contemplated hereby, will nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in a the breach of any of the terms, conditions conditions, or provisions of Seller's Articles of Partnership In Commendam any agreement or other organizational documents, or of 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.
(f) Seller's books, accounts and records are, and have been, maintained in Seller's usual, regular and ordinary manner, in accordance with prudent business practices and generally accepted accounting practices, and all material transactions to which Seller is or has been a party are properly reflected therein.
(g) Complete and accurate copies of the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) of Seller, all as of and for the years ended December 31, 1993, 1994, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect to Seller's last four (4) fiscal years.
(h) Complete and accurate copies of the unaudited balance sheet, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently applied.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) no default has occurred in the due observance or performance of any requirements or condition of any Permit which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source to the effect that there is lacking any Permit needed in connection with the operation of the Business or any restaurant, bar, gift shop or other operation connected therewith.
(j) Seller has not suffered or been threatened with any material adverse change in the business, operations, assets, liabilities, financial condition or prospects of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employees.
(k) The Disclosure Schedule correctly and completed lists and describes all material contracts, leases, and agreements instrument to which Seller is a party and which relate to the conduct of the Business, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements (other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to by which Seller or any of Seller's assets is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, bound;
(c) [intentionally omitted]
(d) [intentionally omitted]
(e) to the best of Seller's knowledge, no default by the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a default by Seller thereunder. Seller has given received no written notice of (i) any pending assessment or will give, during the Inspection Period) to Purchaser true and correct copies of all such agreements or leases, or a detailed description thereof, all as described in Section 4.3(k) of the Disclosure Schedule. Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contract, lease or agreement not disclosed to Producer as required in this Section 4.3(k).
(l) Seller is not a party to, or bound by, any unexpired, undischarged or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under the terms of which performance by Seller according condemnation proceedings relating to the terms of this Agreement will be a default Property, (ii) any special assessment or an event of acceleration, reassessment liens or whereby timely performance by Seller according to proceedings for general real estate tax purposes affecting the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement Property (other than those expressly assumed those, if any, as may be reflected in the Title Commitment), or (iii) any actions, suits, or other proceedings filed or pending in any court or before any administrative agency against Seller or affecting the Property (exclusive of any tenant bankruptcy proceedings disclosed in any of the materials delivered to Purchaser by Purchaser) at or prior on behalf of Seller pursuant to Closing.
(m) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance chargesSection 4.1 above);
(iif) there is no request for union representation[intentionally omitted] As used herein, labor strike, dispute, slowdown or stoppage actually pending or, the phrase "to the best of Seller's knowledge" shall mean only the actual, threatened against current conscious and not constructive, imputed or directly affecting Seller;
implied knowledge of Xxxxxx Xxxxxx and Xxxxxx Xxxxx (iiithe Portfolio Manager and Asset Manger, respectively, of Advisor (as defined below) no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending and no claims therefor exist;
(iv) the employment of each of the Seller's employees is terminable at will without cost to the Seller except for payments required under Seller's employee benefit plans, employee welfare plans and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller prior to the Seller's hiring a person not previously employed by the Seller.
(v) The Disclosure Schedule contains a true and complete list of all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or primarily responsible with respect to the consummation Property on behalf of the transaction contemplated hereby, Seller) without any duty of investigation or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, inquiry. Anything herein to the best of Seller's knowledgecontrary notwithstanding, anticipated neither Xxxxxx Xxxxxx, Xxxxxx Xxxxx or threatened against Seller Advisor shall have any personal or other liability or obligation whatsoever with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, matters set forth in this Agreement or any of Seller's personnelrepresentations herein being or becoming untrue, inaccurate or incomplete in any respect. The parties agree that (a) Seller's warranties and representations contained in this Section 4.6 shall survive the Business are subject or to which it, itself, is subjectClosing Date and Purchaser's acquisition of the Property only for a period of nine (9) months after the Closing Date (the "Limitation Period"), including, without limitation, laws, statutes and regulations relating (b) Purchaser shall provide written notice to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation Seller of any breach of such warranties or representations and shall allow Seller thirty (30) days within which to cure such breach, or, if such breach cannot reasonably be cured within thirty (30) days, an additional reasonable time period, so long as such cure has been commenced within such thirty (30) days and diligently pursued; provided that such time for cure shall not in any event extend the foregoing Closing Date by more than sixty (60) days. If Seller fails to cure such breach after written notice and within such cure period, Purchaser's sole remedy shall be an action at law for damages as a consequence thereof (subject to the limitations contained in Section 8.1 below), which Seller has received must be commenced, if at all, within the past three years are attached Limitation Period; provided, however, that if within the Limitation Period Purchaser gives Seller written notice of such a breach and Seller commences to cure and thereafter terminates such cure effort or is otherwise unable to cure such default, Purchaser shall have an additional thirty (30) days from the Disclosure Scheduledate of such termination of attempts to cure within which to commence an action at law for damages as a consequence of Seller's failure to cure. The Limitation Period referred to herein shall apply to known as well as unknown breaches of such warranties or representations.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoever; and "Environmental Permits" means licenses, permits, registrations, governmental approvals, agreements and consents which are required under or are issued pursuant to Environmental Laws.
Appears in 1 contract
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser that, to the best of Seller's knowledge and except Buyer as set forth in the Disclosure Schedulefollows:
(a) Seller is a limited partnership in commendam, corporation duly organized, validly existing existing, and in good standing, standing under the laws of the State of Louisiana. Seller has all necessary power Nevada, with full right, power, and authority to conduct convey to Buyer all of Seller's right, title and interest in and to the Business as Property, and to enter into and otherwise perform and comply with the Business is now being conducted.terms of this Agreement;
(b) Except as set forth in This Agreement and all documents executed by Seller that are to be delivered to Buyer at the Disclosure ScheduleClosing are, or at the time of Closing will be, duly authorized, executed and delivered by Seller; and
(c) This Agreement and all documents executed by Seller that are to be delivered to Buyer at Closing are, or at the time of Closing will be, legal, valid and binding obligations of Seller, and do not, and at the time of Closing will not, violate any provisions of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject.
(d) To the best of Seller's knowledge, Seller holds has good and marketable title to the Purchased Assets, free Property and clear of all mortgages, options, liens, charges, easements, agreements, claims, rights, restrictions or other encumbrances of any kind or nature other than at Closing such title shall be subject only to the Permitted Exceptions, and all items of Equipment, Inventory and other personal property have been fully paid for, to the extent that normal business practice permits, except those items identified on the Disclosure Schedule which are subject to installment payments or leases and with respect to which there are no installments due which are delinquent.
(c) Seller has full partnership power and authority to enter into and perform under (x) this Agreement and (y) all documents and instruments to be executed by Seller pursuant to this Agreement (collectively, "Seller's Ancillary Documents"). This Agreement has been, and Seller's Ancillary Documents will be, duly authorized by all necessary partnership action(s), and duly executed and delivered by general partners of Seller so authorized. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies). Except as contemplated under Section 6.1 hereof, there is no law, rule, regulation or ordinance of any governmental body or agency prohibiting Seller's execution, delivery and performance of the transactions contemplated by this Agreement. The sale transaction contemplated by this Agreement is being made in connection with the winding-up of Seller as contemplated under Section 13.02(f) of Seller's Articles of Partnership In Commendam dated as of May 1, 1980.
(d) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for Seller's execution and delivery of this Agreement and Seller's Ancillary Documents and the consummation by Seller of the transactions contemplated by this Agreement and Seller's Ancillary Documents.
(e) Neither To the execution and delivery of this Agreement and Seller's Ancillary Documents by Seller, nor the consummation by Seller of the transactions herein contemplated, will conflict with or result in a breach of any of the terms, conditions or provisions best of Seller's Articles of Partnership In Commendam knowledge, other than the Property, there are no items, tangible or other organizational documentsintangible, real or of any statute or administrative regulationpersonal, or of any order, writ, injunction, judgment or decree of any court owned by the Seller or any governmental authority affiliate of Seller as of now or of at any arbitration awardtime heretofore and used in conjunction with the Property or any portion thereof.
(f) To the best of Seller's booksknowledge, accounts and records areall of the Property, and have beenthe existing uses of the Property, maintained are in Seller's usualcompliance with all applicable laws, regular and ordinary mannerordinances, in accordance with prudent business practices and generally accepted accounting practicesrules, regulations, and requirements of all material transactions governmental authorities having jurisdiction thereof, including, without limitation thereto, those pertaining to which Seller is or has been a party are properly reflected thereinzoning, land use, subdivision, building, safety, fire and health.
(g) Complete and accurate copies of To the audited balance sheets, statements of income and retained earnings, statements of cash flows, and notes to financial statements (together with any supplementary information thereto) best of Seller's knowledge, all as of and for the years ended December 31there is no action, 1993suit, 1994proceeding or investigation pending, 1995, and 1996, respectively, as audited by Seller's certified public accountants are contained in the Disclosure Schedule. All such financial statements are referred to herein collectively as the "Financial Statements." The Financial Statements present accurately and completely the financial position of Seller as of the respective dates thereof, and the results of operations and cash flows of Seller for the respective periods covered by said statements, in accordance with GAAP, consistently applied. The Disclosure Schedule contains complete and correct copies of all attorneys' responses to audit inquiry letters and all management letters from the Accountants with respect nor to Seller's last four (4) fiscal yearsknowledge threatened, before any agency, court, or other governmental authority which relates to the Seller or the ownership, maintenance, or operation of the Property.
(h) Complete and accurate copies of There is no condemnation or eminent domain proceeding affecting the unaudited balance sheetProperty or any portion thereof currently pending nor, statement of income and retained earnings and statement of cash flows of Seller as of and for the seven (7)-month period ended July 31to Seller's knowledge, 1997, are contained in the Disclosure Schedule. Such financial statements are herein referred to as the "Interim Financial Statements." The Interim Financial Statements present accurately and completely the financial position of Seller as of the date thereof, and the results of operations of Seller for the period covered by said statements, in accordance with GAAP, consistently appliedis any such proceeding threatened.
(i) The Disclosure Schedule lists all existing Permits and such list is complete and correct in all material respects; (ii) such Permits constitute all of the Permits currently necessary for the ownership and operation of the Business, including but not limited to, the food and beverage licenses required to sell and serve food and liquor; (iii) Seller has received no default has occurred in the due observance or performance notice of any requirements default or condition of breach by the Seller under any Permit covenants, conditions, restrictions, rights-of-way, or easements which has not been heretofore corrected; and
(iv) no occupant under a lease or concession agreement has received any notice from any source may effect the Seller in respect to the Property or may effect that there is lacking any Permit needed in connection with the operation of the Business Property or any restaurantportion thereof, bar, gift shop and no such default or other operation connected therewithbreach now exists.
(j) Seller has not suffered or been threatened with any material adverse change To the best of Seller's knowledge, except as disclosed in the businessPTR, operationsno special or general assessments have been levied, assets, liabilities, financial condition or prospects to Seller's knowledge are any such assessments threatened against all or any part of the Business, including, without limiting the generality of the foregoing, the existence or threat of any labor dispute, or any material adverse change in, or loss of, any relationship between Seller and any of its customers, suppliers or key employeesProperty.
(k) The Disclosure Schedule correctly and completed lists and describes all material contractsTo the best of Seller's knowledge, leasesthere has been no default or any claim of default, and agreements no event has occurred which with notice or lapse of time or both would constitute a default, under any Lease, and to Seller's knowledge no Tenant has asserted or has any defense, set off, or claim with regard to his tenancy pursuant to the lease, any law or otherwise.
(l) To the best of Seller's knowledge, all utilities required by law or by the normal use and operation of the Property are and at the time of Closing will be installed to the property lines of the Real Property, are and at the time of Closing will be connected and operating pursuant to valid permits, and are and at the time of Closing will be adequate to service the Property and to permit full compliance with all requirements of law and normal usage of the Property by Seller and its licensees and invitees. All public utilities required for the operation of the Property either enter the Property through adjoining public streets, or if they pass through adjoining private land do so in accordance with valid public easements or private easements which will inure to the benefit of Buyer at Closing and thereafter.
(m) To the best of Seller's knowledge, the heating, ventilation, air conditioning, mechanical, electrical and other systems and equipment forming a part of or used in connection with the Property are operative and in good working condition and in compliance with all applicable laws, ordinances, regulations and requirements.
(n) Seller is not a party and which relate to the conduct foreign person as defined in Section 1445(f)(3) of the BusinessInternal Revenue Code of 1986, including, without limitation: employment and employment-related agreements; covenants not to compete; loan agreements, notes, and security agreements as amended.
(other than notes, loan agreements and related security documents that are being satisfied at or prior to Closing); sales representative, distribution, franchise, advertising and similar agreements; concession or occupancy agreements; leases and subleases of realty or personalty; guest room, banquet, conference and convention contracts or bookings; license agreements; purchase orders and purchase contracts and sales orders and sales contracts. All contracts, leases and other arrangements or instruments referred to in this paragraph 4.3(k), and all other contracts or instruments to which Seller is a party, are in full force and binding upon the parties thereto. No default by Seller has occurred thereunder and, to o) To the best of Seller's knowledge, no default by asbestos, PCBs or urea formaldehyde were used in the other contracting parties has occurred thereunder. No event, occurrence or condition exists which, with construction of the lapse improvements on the Property.
(p) To the best of timeSeller's knowledge, the giving Property complies with all applicable requirements of noticethe Equal Opportunity for Individuals Act (ADA), or both42 U.S.C. 12101 and the regulations promulgated and set forth at 28 CFR 36.401 et seq.
(q) To the best of Seller's knowledge, or the happening mechanical and structural plans and specifications, soils reports, certificates of any further event or conditionoccupancy, would become a default if delivered by Seller thereunder. Seller has given to Buyer, are and at the time of Closing will be in full force and effect and all such documents relating to or affecting the Property have been, made available to or delivered to Buyer pursuant to this Agreement.
(or will giver) To the best of Seller's knowledge, during the Inspection Period) copies of the Contracts and all Information previously delivered to Purchaser Buyer are true and correct copies of all such agreements or leases, or a detailed description thereof, all as described Contracts and Information and are in Section 4.3(k) of the Disclosure Schedulefull force and effect. There are no unpaid amounts due and owing by Seller shall indemnify Purchaser as required under Section 1.2 hereof, against loss, cost or liability under any contractsuch Contract, lease except for amounts for which Buyer is to receive full credit through proration at Closing. There are no other service or agreement not disclosed maintenance contracts relating to Producer as required in this Section 4.3(k)the Property.
(ls) Seller is not a party to, or otherwise bound by, any unexpired, undischarged collective bargaining agreement or unsatisfied written or oral contract, agreement, indenture, mortgage, debenture, note or other instrument under multi-employer pension fund covering employees who service the terms of which performance by Seller according to the terms of this Agreement will be a default or an event of acceleration, or whereby timely performance by Seller according to the terms of this Agreement may be prohibited, prevented or delayed. If any such agreement exists, Seller shall terminate such agreement (other than those expressly assumed by Purchaser) at or prior to ClosingProperty.
(mt) Except as disclosed on the Disclosure Schedule, there are no commissions or referral fees relating to the Business currently outstanding, nor will there be any such commissions or referral fees outstanding, on or after the Closing Date.
(n) With respect to employees of Seller:
(i) there is no pending or threatened unfair labor practice charges or employee grievance charges;
(ii) there is no request for union representation, labor strike, dispute, slowdown or stoppage actually pending or, to To the best of Seller's knowledge, threatened against Seller has obtained all licenses, permits, approvals, easements and rights of way required from all governmental authorities having jurisdiction over the Property or directly affecting Seller;from private parties for the normal use and operation of the Property and to ensure free and unimpeded vehicular and pedestrian ingress to and egress from the Property as required to permit the normal intended usage of the Property by the tenants thereof, their invitees and customers. Seller has materially complied with all such licenses and permits and has not received any notice that any such licenses or permits will not be renewed upon expiration, or of any material conditions which will be imposed in order to receive any such renewal.
(iiiu) Seller knows of no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending facts nor has Seller failed to disclose to Buyer any fact which would prevent Buyer from using and no claims therefor exist;
(iv) operating the employment of each of Property after Closing in the Seller's employees is terminable at will without cost to manner in which the Seller except for payments required under Seller's employee benefit plans, employee welfare plans Property has been used and similar plans and payment of accrued salaries or wages and vacation pay (for which Purchaser shall have no liability as provided in Section 2.3, above). No employee or former employee has any right to be rehired by the Seller operated prior to the Seller's hiring a person not previously employed by the Sellerdate hereof.
(v) The Disclosure Schedule contains a true and complete list of Seller shall hold as confidential all employees who are employed by the Seller as of the date hereof, and said list correctly reflects their salaries, wages, other compensation (other than benefits under the employee welfare, benefit and similar plans), dates of employment and positions.
(vi) As of the date of this Agreement, Seller has 136 full-time active employees in the operation of the Business, and 31 part-time employees.
(vii) Seller has no retirement, pension, profit sharing, employee welfare information concerning Buyer or employee benefit plans for any of its employees.
(o) Except as set forth on the Disclosure Schedule, there is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority, pending, or, to the best of Seller's knowledge, threatened, against Seller or its Affiliates, or with respect to the consummation of the transaction contemplated hereby, or the use of the Purchased Assets (whether used by Purchaser after the Closing or by Seller prior thereto), or which would restrict or interfere with Seller's ability to perform its obligations hereunder.
(p) There are no material claims pending or, to the best of Seller's knowledge, anticipated or threatened against Seller with respect to the quality of or absence of or defects in Seller's products or services.
(q) Seller is not a party to, or bound by, any decree, order, judgment or arbitration award (or agreement entered into in any administrative, judicial or arbitration proceeding with any governmental authority) with respect to its properties, assets, personnel or business activities.
(r) Seller is not in violation of, or delinquent in respect to, any decree, order or arbitration award or law, statute, or regulation of, or agreement with, or Permit from, any Federal, state or local governmental authority (or to which any of the Purchased Assets, any of Seller's personnel, or the Business are subject or to which it, itself, is subject), including, without limitation, laws, statutes and regulations relating to equal employment opportunities, fair employment practices, unfair labor practices, terms of employment, occupational health and safety, wages and hours and discrimination, and zoning ordinances and building codes. Copies of all notices of violation of any of the foregoing which Seller has received within the past three years are attached to the Disclosure Schedule.
(s) Seller, the Purchased Assets and the Business are in compliance with all Environmental Laws (as herein defined) and any Environmental Permits (as herein defined). A copy of any notice, citation, inquiry or complaint which Seller has received in the past three years of any alleged violation of any Environmental Law or Environmental Permit is attached to the Disclosure Schedule. Seller possesses all Environmental Permits which are required for the operation of the Business, and is in compliance with the provisions of all such Environmental Permits. Copies of all Environmental Permits issued hereby disclosed to Seller are attached to the Disclosure Schedule. As used in this Agreement, "Environmental Laws" means all federal, state and local statutes, regulations, ordinances, rules, regulations and policies, all court orders and decrees and arbitration awards, and the common law, which pertain to hazardous substances or materials, environmental matters or contamination of any type whatsoeverconnection with said transaction; and "Environmental Permits" means licensesSeller shall not, permitsprior to Closing, registrationsrelease any such information to third parties without Buyer's prior written consent, governmental approvals, agreements and consents which are required under or are issued except pursuant to Environmental Lawsa court order requiring such release or as otherwise may be required by law.
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