Seller’s Representations. SELLER represents and warrants as follows: (i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby; (ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws. (iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party; (iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws. (v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets; (vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission; (vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER. (viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 5 contracts
Samples: Private Securities Subscription Agreement (Cytrx Corp), Private Securities Subscription Agreement (Cytrx Corp), Private Securities Subscription Agreement (Cytrx Corp)
Seller’s Representations. SELLER Seller hereby represents and warrants to Buyer, as of the date hereof and as of the time of transfer of each Aircraft and the Spares Package, as follows:
(i1) SELLER has not conducted any general solicitation or general advertising (as defined PLM is a corporation duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
state of Delaware. Seller has all requisite power and authority to enter into and perform its obligations under this Agreement and the other documents referred to herein to which Seller is a party (ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws“Seller Documents”).
(iii2) The Shares, when issued PLM Equipment Growth Fund VI Liquidating Trust is the sole owner participant under the N907TW Trust. PLM Equipment Growth & Income Fund VII Liquidating Trust and delivered upon conversion of Professional Lease Management Income Fund I Liquidating Trust are the Debentures in accordance with their terms, will be duly sole owner participants under the N911TW and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;N912TW Trust.
(iv3) This Agreement has been been, and on or prior to the applicable Closing Date, the applicable Seller Documents will have been, duly authorized, validly executed and delivered on behalf of SELLER by Seller. This Agreement constitutes, and is a the other Seller Documents, when executed and delivered, will constitute, the legal, valid and binding agreement obligation of SELLER Seller, enforceable against Seller in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion except as enforcement of the court before which any proceedings therefor may be brought terms hereof and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement thereof may be limited by applicable lawsbankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting enforcement of creditors’ rights generally, and by general principles of equity.
(v4) The execution and None of the execution, delivery or performance by Seller of this Agreement and Agreement, or any of the other Seller Documents, or the consummation by Seller of the transactions contemplated by this Agreement do not hereby and thereby, will not conflict with contravene any applicable law binding on Seller or any of its property, or any provision of the certificate of incorporation or by-laws of PLM, or will result in a breach by SELLER of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERcontravene any provision of, or any indenture, mortgage, deed of trust trust, indenture or other material agreement or instrument to which SELLER PLM or Seller is a party or by which it PLM or Seller or all or any of its properties property or assets are may be bound.
(5) None of the execution, delivery or performance by Seller of this Agreement or the other Seller Documents, or any existing applicable decreethe consummation by Seller of the transactions contemplated hereby and thereby, judgment requires the consent or order approval of, the giving of notice to, the registration, recording or filing of any courtdocuments with, or the taking of any other action in respect of, any United States federal or state regulatory body, administrative agency governmental authority or other governmental body having jurisdiction over SELLER the terms and provisions of this Agreement or any of its properties Seller Document, except such as have been, or assets;will be, obtained, effected, waived or paid on or prior to the Closing Date.
(vi6) No authorization, approval or consent of or filing with any federal, state or local governmental body Seller is the sole legal owner of the United States is legally required for Equipment. On each Closing Date, Seller will transfer to Buyer good and marketable title to the issuance and sale of applicable Aircraft or the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their termsFinal Spares Package, as contemplated by this Agreementthe case may be, except the filing free and clear of a Form D with the Commission;any and all Liens.
(vii7) To There are no pending or, to the best of the Company's knowledge after reasonable investigationSeller’s knowledge, the information contained in the Company's Annual Report on Form 10K for the year ended December 31threatened investigations, 1996suits or proceedings against Seller or affecting Seller or its properties, Proxy statement relating to the Annual Meeting of Shareholders held on June 26that, 1997 if determined adversely, would adversely affect all or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light portion of the circumstance Equipment or the consummation of the transaction contemplated by, or performance by Seller of its obligations under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERthis Agreement.
(viii8) Seller is not in breach of any law that would have an adverse effect on Seller or on Seller’s ability to perform its obligations under, this Agreement or the other Seller Documents.
(9) SELLER will issue one or more certificates representing the Debentures in the name No Event of BUYER in such denominations (in multiples of $25,000) Loss has occurred with respect to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion any of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesEquipment.
Appears in 3 contracts
Samples: Aircraft and Equipment Sale Agreement (PLM Equipment Growth & Income Fund Vii), Aircraft and Equipment Sale Agreement (Professional Lease Management Income Fund I LLC), Aircraft and Equipment Sale Agreement (PLM Equipment Growth Fund Vi)
Seller’s Representations. SELLER represents Each of the individuals and warrants as followsentities comprising Seller represent to Buyer that:
(a) Each (other than natural persons) is a legal entity duly organized and legally existing under the laws of the State of Texas. Each corporation and limited partnership is qualified to do business in Wyoming and is in good standing, or will be at Closing.
(b) Each has full power to enter into this Agreement and perform its obligations hereunder and has taken all necessary action to enter into this Agreement and perform its obligations hereunder.
(c) Execution and delivery of this Agreement, the consummation of the transaction contemplated hereby, and compliance with the terms hereof, will not result in any default under any agreement or instrument to which Seller, or any individual party thereof, is a party or by which the Properties are bound that would be material to this transaction. Execution and delivery of this Agreement will not violate any contractual provision, order, writ, injunction, decree, statute, rule, or regulation applicable to Seller, or any individual party thereof, or to the Properties that would be material to this transaction, except the following:
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect Any waivers of preferential rights to any of the Securities offered herebypurchase that must be obtained from third parties;
(ii) The Debentures, when issued and delivered pursuant to Compliance with the terms Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to 0000 (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.xxx "XXX Xxx"); and,
(iii) The SharesAny approvals that must be obtained from governmental entities who are lessors under leases included in the Properties (or who administer such leases for such lessors) and that are customarily obtained post-closing.
(d) This Agreement and the Assignment and Xxxx of Sale provided for in Section 14.(a)(i) hereof and any other documentation provided for herein to be executed by Seller, will, when issued executed and delivered upon conversion delivered, constitute the legal, valid, and binding obligations of the Debentures in accordance with Seller, enforceable according to their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof except as limited by bankruptcy or other laws applicable generally to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' creditor's rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be as limited by applicable lawsgeneral, equitable principles.
(ve) The Except as disclosed on Exhibit D, there are no pending suits, actions, or other proceedings in which Seller is a party that materially affect the Properties (including, without limitation, any actions challenging or pertaining to Seller's title to any of the Properties) or affect the execution and delivery of this Agreement and or the consummation of the transactions transaction contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERhereby.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Continental Resources Inc), Purchase and Sale Agreement (Continental Resources Inc), Purchase and Sale Agreement (Continental Crude Co)
Seller’s Representations. SELLER Seller hereby represents and warrants to Purchaser except as set forth in that certain schedule (the “Disclosure Schedule”) attached hereto as Exhibit G and made a part hereof for all purposes, as follows:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is a duly organized, validly existing limited partnership under the laws of the Securities offered hereby;
(ii) The Debentures, when issued State of Texas and delivered pursuant is authorized to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained conduct business in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion State of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holdersTexas. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement Contract has been duly authorized, validly executed and delivered on behalf of SELLER by Seller, and is and at the time of the Closing will be a legal, valid and binding agreement obligation of SELLER Seller enforceable against Seller in accordance with its terms, subject to (A) except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or similar laws now or hereafter in effect relating to creditors' of general application affecting the rights and (B) that the remedy remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawscreditors.
(vb) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER Seller has received no written notice of any of the terms (and, to Seller’s actual knowledge, there is no) current, proposed or provisions ofthreatened eminent domain or similar proceeding, or constitute a default underprivate purchase in lieu of such proceeding, which would affect the certificate of incorporation (or charter) or by-laws of SELLER, or Property in any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;way whatsoever.
(vic) No authorization, approval or consent Seller has not received any written notice of or filing a claim that the Property does not comply with any federal, state state, county, city or local governmental any other laws, ordinances, rules and regulations, including, but not limited to, those relating to environmental, zoning, land use and division, building, fire, health and safety matters, of any government or any agency, body or subdivision thereof bearing on the construction of the Improvements and on the operation, ownership or use of the Property (collectively, “Applicable Laws”), which noncompliance Seller has not cured.
(d) Seller has received no written notice of any pending or threatened, litigation which does or would affect the Property or Seller’s ability to fulfill all of its obligations under this Contract. Except as set forth in the Disclosure Schedule, there are no outstanding claims on Seller’s insurance policies which claims relate to the Property.
(e) There are no pending contracts for the sale of all or any portion of the Property.
(f) Except as disclosed to Purchaser and the Construction Contracts, there are no Service Contracts or other written agreements for services, supplies or materials affecting the use, operation or management of the Property entered into by Seller. Seller has delivered to Purchaser true, complete and correct copies of all Service Contracts.
(g) Seller has not received any written notice concerning any alleged violation of any applicable environmental law, rule or regulation which remains uncured.
(h) As a condition of Closing, Purchaser shall have no obligation to continue to employ any persons presently employed by Seller at the Property.
(i) Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as defined in the Internal Revenue Code (“Code”)), and is not subject to the provisions of Sections 897(a) or 1445 of the Code related to the withholding of sales proceeds to foreign persons.
(j) (i) Seller is (A) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), (B) not a person or entity with whom a citizen of the United States is legally required for the issuance and sale prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the Debentures President of the United States, and (provided no commission C) not an “Embargoed Person” (as defined below), (ii) to Seller’s actual knowledge, none of the funds or other remuneration is paid assets of Seller constitute property of, or given are beneficially owned, directly or indirectly indirectly, by SELLER for soliciting such conversionany Embargoed Person, and (iii) to Seller’s actual knowledge, no Embargoed Person has any interest of any nature whatsoever in any Seller (whether directly or indirectly). The term “Embargoed Person” means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the issuance of the Shares upon conversion of the Debentures in accordance with their termsInternational Emergency Economic Powers Act, as contemplated by this Agreement50 U.S.C. §1701 et seq., except the filing of a Form D The Trading with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationEnemy Act, the information contained in the Company's Annual Report on Form 10K for the year ended December 3150 U.S.C. App. 1 et seq., 1996and any Executive Orders or regulations promulgated thereunder. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 9.01 OR EXPRESSLY PROVIDED IN THE DOCUMENTS EXECUTED AND DELIVERED BY SELLER TO BUYER AT CLOSING, Proxy statement relating to the Annual Meeting of Shareholders held on June 26SELLER MAKES NO REPRESENTATIONS AND WARRANTIES OF ANY KIND, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30EXPRESS OR IMPLIED, 1997INCLUDING, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinWITH REGARDS TO THE PROPERTY OR ANY PORTION OF IT, in the light of the circumstance under which they are madeINCLUDING, not misleading. Since September 30WITHOUT LIMITATION, 1997WARRANTIES OR MERCHANTABILITY, there has been no material adverse development in the businessFITNESS FOR A PARTICULAR PURPOSE, properties, operations, financial condition or results of operations of SELLERSUITABILITY OR WORKMANLIKE PERFORMANCE.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 2 contracts
Samples: Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.), Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Seller’s Representations. SELLER Seller represents and warrants to Buyer as followsof the date hereof that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued Seller is a limited liability company duly formed and delivered existing pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations laws of the Company in accordance with their terms, subject State of Delaware and is qualified to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained do business in the Registration Rights Agreement may be limited by applicable lawsState of Colorado.
(iiib) The SharesSubject to Section 14.1, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not violate, or be in conflict with or result in a breach by SELLER with, any provision of the governing documents of Seller, any provision of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which Seller is a party or by which it is bound or to the knowledge of Seller, any judgment, decree, order, statute, rule or regulation applicable to Seller.
(c) The execution, delivery and performance of its properties this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action by Seller.
(d) This Agreement constitutes, and all documents and instruments required hereunder to be executed and delivered by Seller at Closing will 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) There are no bankruptcy, reorganization or assets are boundarrangement proceedings pending, being contemplated by, or to the actual knowledge of the officers of Seller, threatened against Seller;
(f) Seller may contract for brokerage or finder's services against which it shall hold Buyer harmless pursuant to Section 14.4;
(g) Except as shown on EXHIBIT K hereto, there is no claim, demand or suit, action or other proceeding pending in which Seller has been served with process, or to Seller's knowledge threatened, before any, court or governmental agency which if adversely decided could reasonably be expected to result in a material impairment or loss of title to any existing material part of the Assets taken as a whole or the value thereof taken as a whole or which might materially hinder or impede the operation of the Assets taken as a whole;
(h) Except as shown on EXHIBIT K and as may be referred to in Article XIV, Seller, to its knowledge, has not violated, and to Seller's knowledge there are no alleged violations by Seller of, any applicable decreerules, judgment regulations or order orders of any court, federal or state regulatory body, administrative governmental agency or other governmental body having jurisdiction over SELLER the Assets which would affect in any material respect the value of the Assets taken as a whole; and
(i) Seller is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
(j) Seller makes no representation or warranty, express or implied with respect to whether any of its properties the Subject Interests are qualified for, or assets;whether Buyer might be qualified to take, tax credits under Section 29 of the Internal Revenue Code with respect to production from the Subject Interests.
(vik) No authorizationSeller is not in breach or default, approval or consent to Seller's knowledge, alleged to be in breach or default, under any of (i) the Oil and Gas Purchase and Processing Agreements, (ii) any of the instruments creating or reserving the Subject Interests, or (iii) any other Material Contract affecting or included within the Assets, other than a breach or default which would not have a material adverse effect, and, to Seller's knowledge, no other party to any of the instruments and agreements described in (i) through (iii), of this paragraph (k) is in breach of or filing with default thereunder. No event, condition or occurrence exists which after notice or lapse of time or both would constitute a breach or default by Seller under any federal, state or local governmental body of the United States is legally required foregoing except for such breaches or defaults that would not have a material adverse effect.
(l) There are no gas imbalances, other than imbalances affecting the issuance pipeline, on the Subject Interests.
(m) The only consents to which the Subject Interests or the Material Contracts are subject are contained in the transportation agreements included in Incidental Rights or as otherwise set forth in Exhibit E.
(n) Seller (a) understands that the offer and sale of the Debentures Evergreen Stock, the Preferred Stock and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance Adjustment Stock have not been and, subject the provisions of Exhibit J, will not be registered under the Shares upon conversion Securities Act of the Debentures in accordance with their terms1933, as contemplated by this Agreementamended (the "Securities Act"), except the filing of or under any state securities laws, and that such stock is being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering; (b) is acquiring such stock solely for its own account for investment purposes and not with a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating view to the Annual Meeting distribution of Shareholders held on June 26such stock, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in not transfer any shares of such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to stock without compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale laws; (c) is an "accredited investor," as that term is defined in Rule 501(a) promulgated under the Securities Act; (d) is a sophisticated investor with sufficient knowledge and experience in financial, investment and business affairs to permit it to evaluate the merits and risks involved in purchasing such stock and is able to bear the economic risk and lack of liquidity inherent in holding such stock for an indefinite period of time; and (e) has received information concerning Buyer and has had the opportunity to ask questions of, and receive answers from, Buyer and its representatives concerning the business of Buyer and the terms of the SecuritiesEvergreen Stock, the Preferred Stock and the Adjustment Stock and to obtain additional information as desired in order to evaluate the merits and risks inherent in holding such stock.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Kansas City Power & Light Co), Purchase and Sale Agreement (Evergreen Resources Inc)
Seller’s Representations. SELLER Seller represents and warrants the following are true and correct as follows:of the Effective Date of this Agreement (the “Seller’s Representations”).
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is a duly organized and validly existing corporation under the laws of the Securities offered hereby;
(ii) The DebenturesState of Delaware, when issued and delivered pursuant has all necessary power to the terms of execute and deliver this Agreement, will to perform all obligations hereunder, and that this Agreement and any other documents delivered in connection herewith have been duly authorized, executed, issued and delivered and will constitute authorized by all requisite action on Seller’s part. This Agreement is valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not Seller and will not conflict with or result in a breach by SELLER of any of the terms, covenants and provisions of any contract or instrument or agreement as to which Seller is currently bound or any law or regulation, order, judgment, writ, injunction or decree of any court or governmental authority affecting Seller. No approvals or consents by third parties or governmental authorities are required in order for Seller to consummate the transactions contemplated by this Agreement (other than those already received by Seller or those which will be received by Seller prior to the Closing).
(b) Seller has not (i) made a general assignment for the benefit of its creditors, (ii) admitted in writing its inability to pay its debts as they mature, (iii) had an attachment, execution or other judicial seizure of any property interest which remains in effect or (iv) become generally unable to meet its financial obligations as they accrue. There is not pending any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or recomposition of Seller or of Seller’s debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for Seller or for all or any substantial part of its property.
(c) Except for the Lease, the Service Contracts, the Retained Contracts and any title matters of record affecting the Property, Seller is not a party to any lease, occupancy agreement, license, letter of intent, maintenance, service, advertising or other contract or agreement affecting the Real Property that will survive the Closing. Neither Seller nor, to Seller’s knowledge, any other party is in default in any material respect under the terms of the Service Contracts or provisions ofRetained Contracts. True and complete copies of the Service Contracts has been delivered to Buyer.
(d) Seller and all persons or entities having beneficial interests in the Property are “United States Persons,” as defined in Section 1445(f)(3) and Section 7701(g) of the Internal Revenue Code of 1986, as amended, and the purchase of the Property by Buyer as contemplated herein will not be subject to the withholding requirements of Section 1445(a) of the Code;
(e) Neither Seller nor the Property (or any portion thereof) is subject to any right of first refusal, right of first offer, redemption right or option to purchase or lease in favor of a third party or any other agreement or obligation which would or could prevent Seller from completing the transfer of the Property under this Agreement or that may bind Buyer or the Property subsequent to the Closing.
(f) There are no union or employment contracts or agreements (written or oral) affecting the Real Property and there are no employees of Seller, at the Real Property or otherwise, who, by reason of any Federal, State, County, municipal or other law, ordinance, order, requirement or regulation, or constitute a default underby reason of any union or other employment contract, the certificate of incorporation (written or charter) or by-laws of SELLERotherwise, or any indentureother reason whatsoever, mortgagewould become employees of Buyer as a result of the purchase of the Real Property by Buyer.
(g) Seller owns legal and beneficial title to the Personal Property free and clear of all security interests, deed liens, mortgages, claims, charges, pledges, restrictions, equitable interests, restrictive covenants or encumbrances of trust any nature.
(h) Neither Seller nor any Person (as that term is hereinafter defined) who owns a direct interest in Seller is now or shall it be at any time until Closing an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other material agreement form of entity (collectively, a “Person”) with whom a United States citizen, entity organized under the laws of the United States or instrument to which SELLER is a party its territories or by which it entity having its principal place of business within the United States or any of its properties territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) (including those executive orders and lists published by OFAC with respect to Persons that have been designated by executive order or assets by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC [Specially Designated Nationals and Blocked Persons]) or otherwise. Neither Seller nor any Person who owns a direct interest in Seller (other than owners of publicly-traded interests in companies whose securities are boundlisted on a national securities exchange in the United States of America) is now nor shall be at any time until Closing a Person with whom a U.S. Person, including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended, is prohibited from transacting business of the type contemplated by Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(i) To Seller’s knowledge, during Seller’s ownership of the Property, Hazardous Materials (as that term is hereinafter defined) have not been used, handled, manufactured, generated, produced, stored, treated, processed, transferred, or disposed of in, at or on the Real Property except in compliance with all applicable laws. For purposes of this Agreement, (x) the term “Hazardous Materials” shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material, or any existing applicable decreepollutant or contaminant; (b) mold, judgment fungi, radon gas, asbestos in any form which is or order of any courtcould become friable, federal or state regulatory bodyurea formaldehyde foam insulation, administrative agency transformers or other governmental body having jurisdiction over SELLER or any equipment which contain dielectric fluid containing levels of its properties or assets;
(vi) No authorization, approval or consent polychlorinated biphenyls in excess of or filing with any presently existing federal, state or local governmental body safety guidelines, whichever are more stringent; (c) any substance, gas material or chemical which is defined as or included in the definition of “hazardous substances,” “toxic substances,” “hazardous materials,” “hazardous wastes” or words of similar import under any Law or under the United States is legally required for regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the issuance Comprehensive Environmental Response, Compensation and sale Liability Act of 1980, as amended, 42 U.S.C. §9061 et seq.; the Debentures Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq.; and (provided no commission d) any other chemical, material, gas, or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationsubstance, the information contained exposure to or release of which is prohibited, limited or regulated by any governmental or quasi-governmental entity or authority that has jurisdiction over the Real Property or the operations or activity at the Real Property. Seller has not received or delivered any notices under or in the Company's Annual Report on Form 10K for the year ended December 31connection with that certain Environmental Indemnity Agreement between Lockheed Xxxxxx Corporation and Sun Microsystems, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30Inc. dated August, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit partially assigned to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERSeller.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Cynosure Inc)
Seller’s Representations. SELLER Each Seller represents and warrants to Buyer that, as follows:of the Effective Date, the following representations and warranties pertaining to such Seller and such Seller’s Property are true in all material respects. Sellers reserve the absolute right to update all of the Exhibits and Schedules hereto in order to make such representations and warranties true as of the Closing Date; provided, however, that the foregoing right to update and amend the Exhibits and Schedules hereto shall not be deemed a waiver of any Buyer’s claims of a Seller default (i.e. the foregoing right to update and amend the Exhibits and Schedules hereto shall not be deemed to permit Sellers to default under any express covenant made by Sellers).
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Each Seller represents that it is duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The Debenturesstate of its organization and duly qualified to do business in the Commonwealth of Virginia, when issued and delivered pursuant it has full power and authority to execute and deliver this Agreement, subject to the terms of this Agreement, and as of the Closing Date will have been duly authorized, executed, issued authority to execute and deliver all other documents now or hereafter to be executed and delivered by it pursuant to this Agreement (the “Seller’s Documents”) and to perform all obligations arising under this Agreement and its Seller’s Documents. This Agreement constitutes, and as of the Closing Date such Seller’s Documents will constitute each constitute, the legal, valid and legally binding obligations of the Company such Seller, enforceable against such Seller in accordance with their respective terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium reorganization and other similar laws now or hereafter in effect relating to affecting the enforcement of creditors' ’ rights generally and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement except as may be limited by applicable lawsgeneral equitable principles. Within the five (5) years prior to the Effective Date, no Seller has (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller’s creditors, as the case may be, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets which remains pending, (iv) suffered the attachment or other judicial seizure of all, or substantially all of Seller’s assets, which remains pending, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
(iiib) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable This Agreement does not and will not subject contravene any provision of the holders thereof to personal liability by reason organizational documents of being such holders. There are no preemptive rights Seller, any judgment, order, decree, writ or injunction, or any provision of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation existing law or any agreement regulation to which SELLER such Seller is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and party or is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) bound. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement hereby do not and will not conflict with require (except to the extent, if any, set forth herein or result in a breach the documents listed in the Exhibits attached hereto) any consent or waiver by SELLER any third party (including, without limitation, the consent of any direct or indirect partner of such Seller) or such consent or waiver has, as of the terms Effective Date, been obtained by such Seller. Seller has granted no options or provisions ofrights of first refusal to acquire any interest in the Properties.
(c) Exhibit B attached hereto is a true and complete tenant list for such Seller’s Property. True and complete copies of all Leases have been made available to Buyer for inspection in the War Room. Sellers have delivered to Buyer a current tenant delinquency report that each Seller uses in its operation and management of each Property which is the most current delinquency report as of the Effective Date. Each Seller agrees to update the delinquency report pertaining to such Seller’s Property upon Buyer’s written request.
(d) To each Seller’s knowledge, Exhibit C attached hereto is a true and complete list of all Service Contracts affecting such Seller’s Property (subject to amendments, modifications or supplements permitted pursuant to Article XV). Attached hereto as Exhibit E is a true and complete list of all Construction Contracts affecting such Seller’s Property (subject to amendments, modifications or supplements permitted pursuant to Article XV).
(e) To each Seller’s knowledge, except as set forth on Exhibit R attached hereto, there are no pending actions, suits, arbitrations, claims or proceedings at law or in equity affecting such Seller or its Property, including, but not limited to actions, suits, arbitrations, claims or proceedings regarding Hazardous Materials (as hereinafter defined), Americans with Disabilities Act of 1990 or any zoning, building, health, traffic, flood control or other applicable rules, regulations, codes, ordinances, or constitute statutes of any local, state or federal authority or any other governmental authority . To each Seller’s knowledge, Seller has not received written notice of default, that remains uncured, under any easements or other recorded restrictive covenant affecting the Properties.
(f) As of the Closing Date each Seller shall have paid all leasing commissions payable by such Seller with respect to the current lease term of any Lease, subject to the terms of Section 6.3 above.
(g) Attached as Exhibit S is a default underlist of all refundable Security Deposits (and all accrued interest required to be paid thereon) held by such Seller as of the Effective Date.
(h) Except as set forth on Exhibit I hereto, each Seller represents individually as to the certificate Property owned by such Seller, as of incorporation the Effective Date, to each such Seller’s knowledge as to its own Property, such Seller has not received written notice of any assessments currently affecting its Property that are not of public record or would not generally be recorded in the public records except with respect to any assessments, if any, imposed from time to time pursuant to recorded covenants.
(i) To each Seller’s knowledge, except as set forth on Exhibit T, there are no tax reduction proceedings pending with respect to all or charterany portion of the Properties.
(j) To each Seller’s knowledge, there is no proceeding or inquiry by any governmental agency with respect to the release, production, disposal or storage at the Properties of any Hazardous Materials (as hereafter defined).
(k) Such Seller is not, and will not become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons list) or by-laws of SELLERunder any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or any indentureSupport Terrorism), mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States action and is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect not engage in any way BUYER'S obligations and agreement to comply dealings or transactions or be otherwise associated with all applicable securities laws upon resale of the Securitiessuch persons or entities.
Appears in 2 contracts
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Limited Partnership/), Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Corp)
Seller’s Representations. SELLER Except as disclosed to or known by Buyer prior to the satisfaction or waiver of the feasibility contingency stated in Section 5 above, including in the books, records and documents made available to Buyer, or in the title report or any supplemental report or documents referenced therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the following is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, to sell the Property, and warrants to perform its obligations under the Agreement; (b) The books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement comprise all material documents in Seller's possession or control regarding the operation and condition of the Property; (c) Seller has not received any written notices that the Property or the business conducted thereon violate any applicable laws, regulations, codes and ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental consents necessary to own and operate the Property for its current use; (e) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after closing; (f) There is no pending or threatened condemnation or similar proceedings affecting the Property, and the Property is not within the boundaries of any planned or authorized local improvement district; (g) Seller has paid (except to the extent prorated at closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 8 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after closing; (h) Seller is not aware of any concealed material defects in the Property except as follows:
disclosed to Buyer in writing during the Feasibility Period; (i) SELLER has not conducted any general solicitation or general advertising There are no Hazardous Substances (as defined below) currently located in, on, or under the Property in Regulation D) with respect to a manner or quantity that presently violates any Environmental Law (as defined below); there are no underground storage tanks located on the Property; and there is no pending or threatened investigation or remedial action by any governmental agency regarding the release of Hazardous Substances or the Securities offered hereby;
(ii) The Debenturesviolation of Environmental Law at the Property. As used herein, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws term "Hazardous Substances" shall mean any substance or material now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Sharesdefined or regulated as a hazardous substance, when issued and delivered upon conversion of the Debentures in accordance with their termshazardous waste, will be duly and validly authorized and issuedtoxic substance, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER of any of the terms or provisions ofpollutant, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with contaminant under any federal, state state, or local governmental body of law, regulation, or ordinance governing any substance that could cause actual or suspected harm to human health or the United States environment ("Environmental Law"). The term "Hazardous Substances" specifically includes, but is legally required for the issuance not limited to, petroleum, petroleum by-products, and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.asbestos.
Appears in 2 contracts
Samples: Purchase & Sale Agreement, Purchase & Sale Agreement
Seller’s Representations. SELLER 1.1 The Seller represents and warrants as followsto the Purchaser that:
(ia) SELLER The Seller is the beneficial owner of the Claims and holds the right to transfer title to the Claims and to explore and develop the Claims;
(b) The Seller holds the Claims free and clear of all liens, charges and claims of others, and the Seller has not conducted any general solicitation a free and unimpeded right of access to the Claims and has use of the Claims surface for the herein purposes;
(c) The Claims have been duly and validly located and recorded in a good and miner-like manner pursuant to the laws of the Province of Ontario and are in good standing in Ontario as of the date of this Agreement;
(d) There are no adverse claims or general advertising (as defined in Regulation D) with respect challenges against or to the Seller’s ownership of or title to any of the Securities offered herebyClaims nor to the knowledge of the Seller is there any basis therefore and there are no outstanding agreements or options to acquire or purchase the Claims or any portion thereof;
(iie) The DebenturesSeller has the full right, when issued authority and delivered pursuant capacity to enter into this Agreement without first obtaining the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights consent of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation other person or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement body corporate and the consummation of the transactions transaction herein contemplated by this Agreement do not and will not conflict with or result in a any breach by SELLER of any of the terms covenants or provisions ofagreements contained in, or constitute a default under, or result in the certificate creation of incorporation (or charter) or by-laws any encumbrance under the provisions of SELLER, or any indenture, mortgage, deed of trust agreement or other material agreement or instrument whatsoever to which SELLER the Seller is a party or by which it he is bound or to which he is subject; and
(f) No proceedings are pending for, and the Seller is unaware of any basis for, the institution of its properties or assets are boundany proceedings which could lead to the placing of either Seller in bankruptcy, or in any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;position similar to bankruptcy.
(vig) No authorizationThe Seller agrees that Coast Mountain Geophysical Ltd. of Vancouver, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated British Columbia will hold all claims covered by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained agreement “in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary trust” indefinitely in order to make comply with the statements therein, laws of the Province of Ontario or until such time as Purchaser has made other arrangements.
1.2 The representations and warranties of the Seller set out in paragraph 1.1 above form a part of this Agreement and are conditions upon which the Purchaser has relied in entering into this Agreement and shall survive the acquisition of any interest in the light of Claims by the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERPurchaser.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 2 contracts
Samples: Mineral Property Purchase Agreement (GLOBAL SUNRISE, Inc.), Mineral Property Purchase Agreement (GLOBAL SUNRISE, Inc.)
Seller’s Representations. SELLER Seller represents and warrants to Buyer as followsof the date hereof that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued Seller is a limited liability company duly formed and delivered existing pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations laws of the Company in accordance with their terms, subject State of Delaware and is qualified to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained do business in the Registration Rights Agreement may be limited by applicable lawsState of Colorado.
(iiib) The SharesSubject to Sections 8.1, when issued 8.2, and delivered upon conversion of the Debentures in accordance with their terms15.1, will be duly and validly authorized and issuedexcept as set forth on EXHIBIT I, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not violate, or be in conflict with or result in a breach by SELLER with, any provision of the governing documents of Seller, any provision of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which Seller is a party or by which it is bound or to the knowledge of Seller, any judgment, decree, order, statute, rule or regulation applicable to Seller.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action by Seller.
(d) This Agreement constitutes, and all documents and instruments required hereunder to be executed and delivered by Seller at Closing will 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) There are no bankruptcy, reorganization or arrangement proceedings pending, being contemplated by, or to the actual knowledge of the officers of Seller, threatened against Seller;
(f) Seller may contract for brokerage or finder's services against which it shall hold Buyer harmless pursuant to Section 15.4;
(g) Except as shown on EXHIBIT J hereto, there is no claim, demand or suit, action or other proceeding pending in which Seller has been served with process, or to Seller's knowledge threatened, before any, court or governmental agency which if adversely decided could reasonably be expected to result in a material impairment or loss of title to any material part of the Assets taken as a whole or the value thereof taken as a whole or which might materially hinder or impede the operation of the Assets taken as a whole;
(h) Except as shown on EXHIBIT J and as may be referred to in Article XIV, Seller, to its knowledge, has not violated, and to Seller's knowledge there are no alleged violations by Seller of, any applicable rules, regulations or orders of any governmental agency having jurisdiction over the Assets which would affect in any material respect the value of the Assets taken as a whole; and
(i) Seller is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
(j) Seller makes no representation or warranty, express or implied with respect to whether any of the Subject Interests are qualified for, or whether Buyer might be qualified to take, tax credits under Section 29 of the Internal Revenue Code with respect to production from the Subject Interests.
(k) Seller is not a Public Utility Holding Company as defined in the Public Utility Holding Company Act of 1935, and, to the knowledge of Seller, it is not a partner with any party who is a Public Utility Holding Company.
(l) Seller is not in breach or default, or to Seller's knowledge, alleged to be in breach or default, under any of (i) the Material Contracts, (ii) any of the instruments creating or reserving the Subject Interests, or (iii) any other material agreement or contract affecting or included within the Assets, other than a breach or default which would not have a material adverse effect, and, to Seller's knowledge, no other party to any of the instruments and agreements described in (i) through (iii), of this paragraph (l) is in breach of or default thereunder. No event, condition or occurrence exists which after notice or lapse of time or both would constitute a breach or default by Seller under any of the foregoing except for such breaches or defaults that would not have a material adverse effect.
(m) There are no gas imbalances, other than imbalances affecting the pipeline, on the Subject Interests except as described on Exhibit M.
(n) Solely with respect to the LLC Ownership Asset, the Seller represents and warrants to Buyer the following:
(i) LGG is a limited liability company duly organized, validly existing and in good standing under the laws of Colorado and is duly qualified and in good standing to carry on its business in Colorado.
(ii) Except as set forth on EXHIBITS I AND J: (i) the Ownership Interest is duly and validly authorized for issuance, legally issued, fully paid and nonassessable, and has not been issued, and is not held, in violation of any preemptive rights; (ii) Seller is the lawful and beneficial owner of record of the Ownership Interest and has full right, title and interest to such Ownership Interest free and clear of all liens, encumbrances, claims and restrictions; (iii) there are no agreements or understandings with respect to the voting of the Ownership Interest and there are no options, subscriptions, warrants or rights to purchase, convert into or otherwise acquire any ownership interest of LGG, nor are there any plans, understandings or agreements to issue any such options, subscriptions, warrants or rights to purchase, convert into or otherwise acquire any ownership interest of LGG.
(iii) To the best of Seller's knowledge, except as set forth on EXHIBITS I AND J, (i) the execution, delivery and performance of this Agreement by Seller and the consummation by it of the transactions contemplated hereby does not require the consent, waiver, approval, license or authorization of any person, entity or public authority which will not have been obtained on or prior to Closing; does not, with or without the giving of notice or the passage of time or both, violate any provision of law or the organizing documents of LGG, or conflict with or result in a breach, termination or acceleration of any provision of, constitute a default under, or result in the creation of any lien, claim, security interest or encumbrance upon any of the assets of Seller or LGG pursuant to any mortgage, deed of trust, indenture or other agreement or instrument, or any order, judgment, decree or any other restriction of any kind or character, to which either Seller or LGG are a party or by which they or any of its properties their assets may be bound.
(iv) Seller and Buyer agree that, except as otherwise expressly provided in this Agreement, the Ownership Interest is being purchased "AS IS," "WHERE IS" and "WITH ALL FAULTS," latent and patent. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE AND WILL NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO OR RELATING TO THE OWNERSHIP INTEREST AND UNDERLYING ASSETS OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer expressly acknowledges that, except as specifically provided for in this Agreement, Buyer is not authorized to rely, has not relied and will not rely on any representation, statement or assets are boundwarranty of Seller or of any representative and will not rely on any representation, statement or warranty of Seller or of any representative Seller. Except as otherwise expressly provided herein, Seller makes no representations, warranties or indemnities for any claim, condition or liability arising before or after this Agreement pursuant to, or any existing applicable decreearising under, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body law, rule or ordinance, including those relating to protection of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting environment such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their termsas, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationwithout limitation, the information contained in Clean Water Act, the Company's Annual Report on Form 10K for Resource Conservation and Recovery Act and/or the year ended December 31Comprehensive Environmental Response, 1996Compensation, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERand Liability Act.
(viiio) SELLER will issue one or more certificates representing the Debentures in the name Seller is aware of BUYER in such denominations (in multiples no liabilities of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable LGG other than those included on the books and records balance sheet provided by Seller to Buyer. Seller is aware of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesno other Material Contracts other than those included on EXHIBIT E hereto.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Kansas City Power & Light Co), Purchase and Sale Agreement (Evergreen Resources Inc)
Seller’s Representations. SELLER Seller represents and warrants as followsto Buyer that:
(ia) SELLER has not conducted Neither Seller nor Tenant is in default in any general solicitation respect under the Lease.
(b) There is no rent prepaid under the Lease for a period of greater than one month.
(c) Except for the Permitted Encumbrances and those items being assigned in Exhibit E hereto, there are no service contracts, licenses, franchise agreements, management agreements or general advertising (as defined in Regulation D) with respect to other contracts or agreements affecting any of the Securities offered hereby;Property which shall extend beyond the Rent Commencement Date that are not terminable at will, without liability.
(iid) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations As of the Company date hereof, Seller has no actual knowledge of any material claims, actions, suits or other proceedings threatened by any partnership, entity or person whomsoever, which in accordance with their termsany manner or to any extent may affect the Property or otherwise detrimentally affect Buyer's right, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now title or hereafter interest in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion Property or the value of the court before which any proceedings therefor Property other than as may be brought and (C) disclosed in writing to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(iiie) The Shares, when issued and delivered upon conversion As of the Debentures in accordance with their termsdate hereof, will be duly and validly authorized and issued, fully-paid and non assessable and will Seller has not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights received any notice of any shareholder violation of SELLER applicable zoning, environmental protection, use and building codes or other regulations and ordinances, administrative and judicial orders or holdings and covenant running with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and land other forms of equitable relief than as may be subject disclosed in writing to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(vf) The execution and delivery of this Agreement and all documents to be executed by Seller pursuant to this Agreement have been (or shall be prior to the consummation Closing Date) duly authorized.
(g) Sewage, water, telephone, and electrical and gas are available to and will be operating on the Rent Commencement Date at the Real Property.
(h) As of the transactions Possession Date, the Building will be completed in accordance with the Lease (subject to changes approved by Tenant and punchlist items that Seller has undertaken to complete). Seller will have paid in full or provided for full payment of all invoices and fees for labor performed at, and materials, machinery, fixtures and tools delivered to, furnished to or incorporated into the Property except for such property as is provided by Tenant under the terms of the Lease and except for any punchlist items to be completed by Seller after Closing; Seller shall diligently provide, complete and pay for all punchlist items specified by Tenant on the Estoppel it provides Buyer hereunder.
(i) Seller is not a foreign person or entity under the Foreign Investment in Real Property Tax Act of 1980, as amended, and no taxes or withholding required thereunder shall be assessed or applied to Buyer in connection with the transaction contemplated hereby.
(j) Seller has no actual knowledge of any unsecured release, storage or disposal of hazardous substances on the Real Property, except as disclosed in the Phase I Environmental Site Assessment prepared by Underground Environmental Services, Inc., dated December 21, 2004 (the "Environmental Report").
(k) There are no leases, other than the Lease, nor tenants, other than Walgreen Co. of the Real Property.
(l) Seller is not the subject of any insolvency or bankruptcy proceedings at law or in equity or otherwise, the result of which might affect title to the Property or the right of the Seller to transfer and convey the same to Buyer. Seller shall use reasonable efforts to promptly notify Buyer in writing if, after the execution of this Agreement do not and will not conflict with Agreement, any event occurs or result in a breach by SELLER of condition exists, which renders any of the terms foregoing representations and warranties untrue or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or misleading in any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body respect. All of the United States is legally required for the issuance foregoing representations and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares warranties shall be transferable deemed made by Seller on the books date of this Agreement and records at the time of SELLER as and Closing (except to the extent provided set forth in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale an update of the Securitiesrepresentations and warranties given prior to or at the Closing). If Seller updates any of the foregoing representations and warranties prior to or at the Closing and such updates are materially adverse, then Buyer shall have five (5) business days after receipt of the update to cancel this Agreement by written notice to Seller and receive back the entire Deposit, in which event both Buyer and Seller shall be released from all obligations hereunder, except for Buyer's and Seller's obligations of indemnity set forth herein, and the Inspection Documents shall be returned to Seller. If no such notice of termination is given within said five-business day period, then Buyer will be deemed to have elected to close the purchase based on the updated representations and warranties. The above covenants, warranties and representations shall survive the actual Closing Date for a period of one (1) year from the actual Closing Date and shall I automatically tern1inate one (I) year from the actual Closing Date unless Buyer has commenced a lawsuit against Seller (evidenced by service of a complaint upon Seller) within such one-year period.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Blue Ridge Real Estate Co)
Seller’s Representations. SELLER Seller represents and warrants to Purchaser the following as followsof the Effective Date and as of the Closing Date, provided, however, that Purchaser’s remedies in the instance that any of Seller’s Representations are known to be untrue as of the Closing Date, are limited to those set forth in Article XII:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to state of its formation set forth in the terms initial paragraph of this Agreement, ; and has or at Closing will have been duly authorized, executed, issued the entity power and delivered authority to sell and will constitute valid and legally binding obligations of convey the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses Property and to execute the discretion of documents to be executed by Seller and prior to Closing will have taken, as applicable, all corporate or equivalent entity actions required for the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement Agreement, and the consummation of the transactions contemplated by this Agreement.
(b) Seller has all necessary approvals to execute and deliver this Agreement do not and perform its obligations hereunder, and to Seller’s knowledge, no other authorization or approvals, whether of governmental bodies or otherwise, will be necessary in order to enable Seller to enter into or comply with the terms of this Agreement.
(c) This Agreement and the other Closing Documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will have been duly executed and delivered by Seller and will not conflict with constitute legal, valid and binding obligations of Seller. To Seller’s knowledge, neither this Agreement nor anything provided to be done under this Agreement violates or result in a breach by SELLER of shall violate any of the terms or provisions ofcontract, or constitute a default underdocument, the certificate of incorporation (or charter) or by-laws of SELLERunderstanding, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it is bound.
(d) Seller is a “United States person” within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”).
(e) To Seller’s knowledge, the Leases provided to Purchaser by Seller are true, correct and complete copies of the Leases between Seller and the tenants thereunder, including any and all amendments, renewals and extensions thereof. The Schedule of Existing Tenants attached hereto as Exhibit B was prepared for Seller by Seller’s third party manager of the Property, and, to Seller’s knowledge, lists all Leases as of the Effective Date, and is the schedule of Leases maintained by Seller and relied on by Seller for internal administration purposes. To Seller’s knowledge, all outstanding tenant finish costs and leasing commissions currently payable under the Leases or that will be payable prior to the Closing are listed on Schedule 2 attached hereto.
(f) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to the Property, which violation or alleged violation has not been corrected.
(g) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any pending or threatened condemnation proceeding against the Property or any formal notice of condemnation with respect to the Property.
(h) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to Hazardous Materials on the Property.
(i) Seller (which for this purpose includes its properties partners, members, principal stockholders and any other constituent entities (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <xxxx://xxx.xxxxx.xxx/offices/enforcement/ofac/sdn/t11sdn.pdf> or assets are boundat any replacement website or other replacement official publication of such list and (ii) is currently in compliance with and will at all times during the term of this Agreement (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or any existing applicable decreeSupport Terrorism), judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER action relating thereto.
(j) To Seller’s knowledge, no pending or threatened litigation involving the Property or Seller or any of its properties party having an ownership in or assets;
(vi) No authorization, approval otherwise controlling Seller exists which if determined adversely would restrain or consent of or filing with any federal, state or local governmental body otherwise adversely affect the consummation of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as transaction contemplated by this Agreement, except would declare illegal, invalid or non-binding any of Seller’s obligations or covenants to Purchaser under this Agreement or would likely detrimentally affect the filing value or the use or operation of a Form D with the Commission;Property for its intended purpose. Seller shall notify Purchaser promptly of any such litigation of which Seller becomes aware
(viik) To Seller’s knowledge, the best Service Agreements provided to Purchaser by Seller are true and correct copies of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating Service Agreements relevant to the Annual Meeting of Shareholders held on June 26Property, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain including any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERand all amendments thereof.
(viiil) SELLER There are no employees who are employed by Seller or engaged by Seller in the operation, management or maintenance of the Property whose employment will issue continue after Closing. On and after Closing, there will be no obligations concerning any pre-Closing employees or any property manager of Seller, nor will there be any property management agreement or leasing commissions/brokerage agreement which will be binding on Purchaser or the Property.
(m) Seller (i) is not an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), which is subject to Title I of ERISA, or a “plan” as defined in Section 4975(e)(1) of the Code, which is subject to Section 4975 of the Code; (i) the assets of Seller do not constitute “plan assets” of one or more certificates representing such plans for purposes of Title I of ERISA or Section 4975 of the Debentures in Code; (iii) Seller is not a “governmental plan” within the name meaning of BUYER in such denominations (in multiples Section 3(32) of $25,000) to be specified by BUYER prior to closing ERISA, and will issue assets of Seller do not constitute plan assets of one or more certificates representing the Shares such plans; and (iv) transactions by or with Seller are not in such denominations violation of state statutes applicable to be specified by Buyer upon conversion Seller’s regulating investments of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and fiduciary obligations with respect to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesgovernmental plans.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)
Seller’s Representations. SELLER represents Seller hereby covenants, as of the date hereof and warrants at the time of the closing, the following, each of which shall constitute and be determined as followsa condition of this Agreement:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is the Owner of the Securities offered hereby;
(ii) The Debenturespremises, when issued and delivered pursuant is and shall be duly authorized to enter in this Agreement and bind their entity to the terms of the same and shall have approved such sale and waived any rights relating thereto and at the time of closing written evidence of such authority and power shall be presented and delivered to Buyer.
(b) Seller represents and warrants that the premises shall be free and clear of leases and tenancies; provided, however, that Buyer acknowledges that Seller has disclosed to Buyer that there are existing minor encroachments by various abutters to the Premises that were disclosed by Buyer’s survey of the Premises conducted during the Due Diligence Period. . Seller shall have no obligation to remove or otherwise cure such encroachments.
(c) Seller has no knowledge or knows of any circumstances, transactions or occurrences which would give rise to any liabilities, contingent or otherwise, relating to the premises that would be imposed on Buyer by third person(s), except as set forth in documents recorded in the chain of title to the premises or as specifically stated herein, including all local, state and federal permits and approvals, a certificate on the Buyer’s Final Environmental Impact Report for MEPA Project No. 14592 and approvals to provide municipal sewer service connections to the Premises necessary to develop the Premises.
(d) Seller shall notify any and all such contractors at request of Buyer to cease any further delivery of supplies or performance of services except on the written direction of Buyer, so Buyer shall have no responsibility for continuing services. Buyer shall have the option of maintaining or assuming such contracts but shall have no obligation to do so.
(e) That,except as otherwise referred to or disclosed in this Agreement, will have been duly authorizedthe property and all assets are free from any and all liens or encumbrances and that there are not any actions pending or, executedto Seller’s knowledge, issued and delivered and will constitute valid and legally binding obligations contemplated which would render the Buyer subject to any liability, or cause the Buyer to lose possession of the Company in accordance with their terms, subject same due to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now seizure or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited forfeiture by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission bureau, department or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERagency.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sycamore Networks Inc)
Seller’s Representations. SELLER represents As an inducement for Versant’s entering into this Purchase and Sale Agreement and with full knowledge that the truth and accuracy of the representations, warranties and covenants in this Purchase and Sale Agreement are being relied upon by Versant, and to avoid the delay of a complete credit investigation, Seller represents, warrants as followsand covenants to Versant that:
(a) Seller is the sole owner of the Accounts Receivable and none of the Accounts Receivable have previously been assigned or encumbered by a lien that is senior to Versant’s in any manner; Seller has the full power and authority to sell each of the Accounts Receivable and has duly authorized their sale to Versant pursuant to this Purchase and Sale Agreement.
(b) Each Account Receivable is for the amount stated on Schedule A and is/are due and payable in accordance with its/their terms and there are no set-offs, deductions, discounts, reductions, disputes, contingencies or counterclaims against Seller or any of the Accounts Receivable (collectively, a “Chargeback”).
(c) The full amount of the Accounts Receivable is current and presently due and owing to Seller; payment is not contingent upon fulfillment of any other obligation at any time. Furthermore, the prices and terms of shipment conform in all material respects to the terms of any related purchase order or agreement with the Account Debtor.
(d) Upon purchase hereunder, Versant shall be the sole owner and holder of the Accounts Receivable, together with any products, contract rights and/or insurance claims (including the right to receive the proceeds thereof), rights of stoppage in transit and rights of return relating to the Accounts Receivable, all of which are to be deemed a part of the Accounts Receivable. Seller expressly agrees to immediately notify Versant of any payment on account of the Accounts Receivable which Seller receives and to hold any checks and other instruments so received in trust for Versant and to deliver the same in the form received or the proceeds thereof to or at the direction of Versant.
(e) Versant shall have the right of endorsement on all payments received in connection with each Account Receivable and Seller hereby appoints Versant its attorney-in-fact, coupled with an interest, for such purpose.
(f) None of the Accounts Receivable has been generated from a sale to a parent, subsidiary or affiliate or constitute a consignment sale, a replacement of returned goods or a xxxx and hold transaction and Seller does not control or exercise dominion in any way whatsoever over the business of any Account Debtor.
(g) The Accounts Receivable are free of all liens, claims, charges and encumbrances.
(h) Seller has not and will not, at any time, permit any lien, security interest or encumbrance to be created upon any of its accounts receivable and/or its inventory without the prior written consent of Versant.
(i) SELLER has not conducted Seller will notify Versant, in writing, in advance of: any general solicitation or general advertising (as defined change in Regulation D) with respect to Seller’s place of business; Seller having acquired an additional place of business; any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company change in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained Seller’s chief executive office; and/or change in the Registration Rights Agreement may be limited by applicable lawsoffice where Seller’s books and records concerning accounts receivable are kept.
(iiij) The Shares, when issued Seller hereby ratifies and delivered upon conversion confirms each of the Debentures statements, representations, and warranties made in accordance with their termsthe most current copy of its Corporate Certificate delivered to Versant and in any other document or agreement in connection herewith. The representations, will be duly warranties and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares covenants contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares paragraph 2 shall be transferable on the books continuous and records of SELLER as and shall be deemed renewed each xxxx Xxxxxx assigns Accounts Receivable to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesVersant.
Appears in 1 contract
Samples: Factoring Agreement (iSpecimen Inc.)
Seller’s Representations. SELLER Seller represents and warrants to Purchaser and agrees with Purchaser as follows:
(a) At closing, there shall be no contracts, insurance policies, leases, tenancies, arrangements, licenses, concessions, easements, service arrangements, employment contracts or agreements, brokerage agreements, and any and all other contracts or agreements, either recorded or unrecorded, written or oral, affecting the Property or any portion thereof, or the use thereof, other than (i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) that certain Contract with respect to any of the Securities offered hereby;
Safeguard Services Southeast, Inc. dated June 6, 1992, (ii) The Debenturesthat certain Cable Television Installation and Service Agreement for Hotel with Time Warner Entertainment Advance/Newhxxxx Xxxtnership and (iii) that certain Laundry Space Lease dated March 1, when issued 1993 with Amerivend Corporation (the "Laundry Lease")(collectively, the "CONTRACTS", true correct and delivered pursuant complete copies of which are attached hereto as Composite EXHIBIT "C"). Seller shall not permit any lease rights to extend beyond closing and shall deliver exclusive possession of the Property to Purchaser at closing, free of all tenancies, occupancy or possessory agreements or contracts (other than the Contracts) or arrangements, whether oral or written, including, without limitation, any transient hotel guests affecting the Property or any unfulfilled hotel or guest reservations affecting the Property. Seller understands and agrees that Purchaser does not desire to be bound by the terms of this Agreementthe Laundry Lease, will have been duly authorizedhowever, executedin lieu of requiring Seller to terminate same prior to Closing, issued Seller agrees to indemnify Purchaser (and delivered its officers, directors, shareholders, employees and will constitute valid agents) from and legally binding obligations of against any and all liability (including reasonable attorneys fees and costs at trial and all appellate levels) Purchaser (or its officers, directors, shareholders, employees and agents) may suffer, directly or indirectly, as a result of, or arising from, the Company in accordance with their termsLaundry Lease, subject including without limitation, any liability incurred subsequent to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and Closing. Notwithstanding anything to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that contrary, the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsthis subparagraph shall survive indefinitely after Closing.
(iiib) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will Seller has not received any notice of: (i) any pending improvement liens to be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability made by reason of being such holders. There are no preemptive rights of any shareholder of SELLER governmental authority with respect to the Shares contained in SELLER'S Certificate Property; (ii) any violations of Incorporation building codes and/or zoning ordinances or other governmental regulations with respect to the Property; (iii) any agreement pending or threatened lawsuits with respect to which SELLER is a party;
the Property; (iv) This any pending or threatened condemnation proceedings with respect to the Property; or (v) any defects or inadequacies in the Property which would adversely affect the insurability of the Property or increase the cost thereof.
(c) To the best of the actual knowledge of Seller, no fact or condition exists which would result in the termination or impairment of access to the Property or the discontinuation of necessary sewer, water, electric, gas, telephone or other utilities or services to the Property.
(d) Seller has not received written notice from any applicable governmental entity or any insurance carrier of any material defect, latent or otherwise, in the Improvements on the Land, structural elements thereof, the mechanical systems (including, without limitation, all heating, ventilating, air conditioning, plumbing, electrical, utility and sprinkler systems) therein, the utility system servicing the Property and the roofs, which have not been disclosed to Purchaser in writing prior to the date of this Agreement.
(e) To the best of Seller's actual knowledge, all Improvements on the Land were permitted conforming structures under applicable zoning and building laws and ordinances in effect when the Improvements were constructed and the present uses thereof are permitted uses under applicable zoning and building laws and ordinances.
(f) During the period between the date of this Agreement has and closing, Seller shall continue to operate and manage the Property in a prudent, businesslike and responsible manner consistent with its operation and management prior to the date of this Agreement and keep same clear of accumulations of trash, debris or overgrowth of vegetation. Seller shall: (i) continue to maintain all of the present services to the Property, (ii) make all repairs and replacements in the ordinary course of business to the Property (excluding capital expenditures in excess of $100.00 per unit), and (iii) not remove any of the personal property from the Property except in replacement of same (or as to the fitness equipment of Seller, which Seller is permitted to remove at any time). In addition, Seller shall make all payments due prior to closing in connection with the Property, including all utility payments and payments on any other obligations affecting the Property. Notwithstanding the foregoing, exclusive possession of the Property shall be conveyed to Purchaser at closing, and, accordingly, Seller shall not accept any reservations for hotel or transient guests at the Property which would affect the Property at the time of, or after, closing.
(g) To the best of Seller's knowledge, Seller is vested with good, marketable and insurable fee simple title to the Realty subject only to the Permitted Exceptions as provided herein; and Seller is vested with good and marketable title, subject only to the Permitted Exceptions, to all fixtures, equipment, furnishings and items of personal property referred to in subparagraph (b) above free of all financing and other liens or encumbrances (except only for mortgage which are to be satisfied and released at closing).
(h) Seller shall comply prior to closing with all laws, rules, regulations, and ordinances of all governmental authorities having jurisdiction over the Property, provided, only, however, that Seller shall have no obligation to adapt any units within the Property to comply with the requirements of the Americans with Disabilities Act. Seller shall be responsible for and shall promptly pay all amounts owed for labor, materials supplied, services rendered and/or any other bills or amounts related to Seller and Seller's ownership and/or operation of the Property prior to closing.
(i) Prior to closing, no portion of the Property or any interest therein, beneficial or otherwise, shall be alienated, further encumbered, conveyed or otherwise transferred. In addition, Seller shall not discuss or negotiate any potential sale of the Property with any third party during the term hereof.
(j) The execution, delivery and performance of this Agreement by Seller have been duly authorizedauthorized and no consent of any other person or entity to such execution, validly executed delivery and delivered on behalf of SELLER and performance is required to render this document a valid and binding agreement of SELLER instrument enforceable against Seller in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that . Neither the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and or the consummation of the transactions contemplated by this Agreement do not and will not conflict with or hereby will: (i) result in a breach by SELLER of of, or default under, any agreement to which Seller (or any of the terms entities or provisions of, or constitute a default under, the certificate of incorporation (or charterpersons comprising Seller) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are the Property is bound, or (ii) violate any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;restrictions to which Seller is subject.
(vik) No authorization, approval or consent of or filing with any federal, state or local governmental body Seller is not a "foreign person" within the meaning of the United States tax laws and to which reference is legally required for made in Internal Revenue Code Section 1445(b)(2). At closing, Seller shall deliver to Purchaser an affidavit to such effect, and also stating Seller's employer identification number and the issuance state within the United States under which Seller was organized and sale of the Debentures exists. Seller acknowledges and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures agrees that Purchaser shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as same may be modified and amended from time to time, and Seller shall act in accordance with their terms, as contemplated all reasonable requirements of Purchaser to effect such full compliance by this Agreement, except the filing of a Form D with the Commission;Purchaser.
(viil) To the best of Seller's actual knowledge, without any independent investigation or inquiry, there has not been and there is not now: (i) any Hazardous Substance (as hereinafter defined) present on the Company's knowledge after reasonable investigationRealty, the information contained except for such materials as are normally and customarily used for household purposes or in the Company's Annual Report operation or maintenance or apartment complexes, and which are not in violation of any environmental law, (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance on Form 10K the Realty, except for such materials as are normally and customarily used for household purposes or in the year ended December 31operation or maintenance or apartment complexes, 1996and which are not in violation of any environmental law,, Proxy statement or (iii) any failure to comply with any applicable local, state or federal environmental laws, regulations, ordinances or administrative or judicial orders relating to the Annual Meeting generation, recycling, reuse, sale, storage, handling, transport and/or disposal of Shareholders held on June 26any Hazardous Substance. Seller has not received any notice from any governmental authority regarding the presence of any Hazardous Substance, 1997 any present or Quarterly Report on Form 10-Q for past generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance or any failure to comply with any applicable local, state or federal environmental laws, regulations, ordinances or administrative or judicial orders relating to the quarter ended June 30generation, 1997recycling, as filed with the Commission does not contain reuse, sale, storage, handling, transport and/or disposal of any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleadingHazardous Substance. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER Seller shall at all times prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale local, state or federal environmental laws, regulations, ordinances or administrative or judicial orders relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of the Securities.any Hazardous Substance and Seller shall not generate, recycle, reuse, sell, store, handle, transport and/or
Appears in 1 contract
Seller’s Representations. SELLER Seller represents and warrants to Buyer that as followsof the date hereof and as of the Closing:
(i) SELLER has A. The rent roll, which is included as part of Seller’s Deliveries, is a true, correct and complete in all material respects and sets forth a list of the Leases and Tenants, including, but not conducted limited to, the description, by agreement and document name and date, of each Lease, together with any general solicitation or general advertising (as defined in Regulation D) amendments, assignments and other documents with respect thereto. The rent roll includes an addendum describing, with respect to each Lease, the amount of any Lease commissions owing, the amount of any advance or prepaid rentals which have not accrued, any rental holidays which have not expired and other Tenant inducement costs granted to any Tenant which have not been fully utilized, if any. All of the information on the rent roll, including the description of the leased premises, the rent and other charges payable by Tenants, the terms and options to renew, and the Lease security deposits, also is true, correct and complete in all material respects. The Leases provided to Buyer pursuant to Paragraph 4.A hereof are true and correct copies thereof and such Leases have not been amended or modified except as otherwise disclosed by Seller to Buyer. Seller is the “Landlord” or “Lessor” under the Leases and has full power and authority to assign the same to Buyer. Seller has not received written notice of any uncured event of default with respect to the performance of any of its obligations under the Securities offered hereby;
Leases. Each of the Leases is in full force and effect and there is no monetary or non- monetary default under any Lease by either the landlord or the tenant thereunder, nor, to the best of Seller’s knowledge, has an event occurred which with the giving of notice or the passage of time or both would result in a default thereunder by either the landlord or the tenant thereunder. No valid claims or rights of offset exist with respect to the Leases. No Lease commissions, Tenant inducement costs or other amounts are now payable to any person or entity under any agreement or understanding in connection with any Lease or the renewal thereof, or any other options thereunder (iiprovided, however, if a Lease is renewed a commission may be due), nor does there exist any commission, compensation or other amount which may become payable to any broker or other agent under any agreement or understanding in connection with any Lease or renewal thereof, or any options thereunder. Seller has not received written notice from any Tenants indicating the intention of such Tenants to terminate its Lease or to limit, amend or alter its Lease or its use or occupancy. Seller has not previously assigned, pledged, transferred, hypothecated or conveyed the Leases or any interest therein. All of the work (including all tenant improvements) The Debenturesto be constructed and installed by Seller, when issued as the landlord, in the leased premises located on the portion of the Property owned by such Seller and delivered pursuant to the terms Leases is complete and fully paid for and/or will be complete and fully paid for on or before the Closing or if not an appropriate credit will be given to Buyer at the time of this AgreementClosing.
B. All of the Contracts are terminable without penalty upon not more than thirty (30) days’ notice. There are no Contracts with any person or entity relating to the Property which must be assumed by Buyer (or which will be deemed assumed by the Buyer upon the Buyer becoming the owner of the Property), other than the Assumed Contracts. The Assumed Contracts, if any, are in full force and effect and constitute valid and enforceable agreements of Seller, free and clear of all liens, charges, encumbrances and adverse claims, and no event has occurred which with the giving of notice or the passage of time or both would result in a default thereunder. Seller has obtained, or on or before the Closing will have obtained, all requisite consents of third parties to the assignment to and assumption by Buyer of the Assumed Contracts.
C. To the best of Seller’s knowledge and belief, there are no pending or threatened improvements, liens, or special assessments made or to be made against the Property by any governmental authority.
D. There are not any pending, or to Seller’s actual knowledge threatened, lawsuit(s), investigations(s), inquiry(ies), actions(s) or other proceeding(s), including without limitation any condemnation proceeding, affecting the Property or the right to use and/or occupy it.
E. There are not any unsatisfied mechanics' or materialmen's lien(s), or any right to lien, affecting the Property or any portion thereof. In the event Seller receives any such notice prior to the Closing, Seller shall immediately notify Buyer and, if required by the Title Company, will have been provide the Title Company with such indemnifications or security as it may require to insure title to the Property, with ALTA extended mechanic’s lien coverage, at the Closing without exception for any unrecorded labor, materialmen's or mechanics' claim of lien.
F. This Agreement is, and all the documents executed by Seller which are to be delivered to Buyer at the Closing will be, duly authorized, executed, issued and delivered by Seller. The obligations contained in this Agreement, are and will constitute valid be legal, valid, and legally binding obligations of the Company Seller enforceable against Seller in accordance with their respective terms. This Agreement does not, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason not, violate any provisions of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by to which it is subject.
G. Seller has full power and authority to sell, convey and transfer the Property as provided for in this Agreement, all necessary actions required on the part of Seller to execute this Agreement and consummate the transaction contemplated hereby have been taken, or will be by Closing, the persons executing this Agreement on behalf of Seller have all requisite authority to execute this Agreement, and this Agreement is binding and enforceable against Seller.
H. To Seller’s actual knowledge, the Property is not in violation of any Environmental Laws (as hereinafter defined) with respect to Hazardous Materials. Seller has not received any written notices that the Property is or may be in violation of any Environmental Law. Seller has disclosed to Buyer all information in Seller's possession or control relating to the environmental condition of the Property. 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 suggesting they might look to Seller for contribution to clean up such condition. In the event Buyer discovers any Hazardous Materials conditions on the Property at any time prior to Closing, Buyer shall have the right to terminate this Agreement upon written notice thereof to Seller, and thereafter this Agreement shall be deemed void and neither party shall have any further rights or obligations hereunder. Notwithstanding anything to the contrary herein, the effect of the representations made in this subparagraph shall not be diminished or deemed to be waived by any inspections, tests or investigations made by Buyer or its agents. For purposes of this Agreement, "Hazardous Materials" shall mean any pollutants, contaminants, hazardous or toxic substances, materials or wastes (including petroleum, petroleum by-products, radon, asbestos and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing equipment, radioactive elements, infectious agents, and urea formaldehyde), as such terms are used in any Environmental Laws (excluding solvents, cleaning fluids and other lawful substances used in the ordinary operation and maintenance of the Property, to the extent in closed containers) and "Environmental Laws" shall mean all federal, state and local environmental laws, rules, statutes, directives, binding written interpretations, binding written policies, ordinances and regulations issued by any governmental or quasi-governmental body or agency having jurisdiction over Seller, the Property or any portion thereof and in effect as of its properties the date of this Agreement with respect to or assets are boundwhich otherwise pertain to or affect the Property or improvements located thereon, or any existing applicable decreeportion thereof, judgment the use, ownership, occupancy or order operation of any courtthe Property or the improvements, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties portion thereof, or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body owner of the United States is legally required for Property, and as same have been amended, modified or supplemented from time to time prior to the issuance and sale date of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except including but not limited to the filing Comprehensive Environmental Response, Compensation and Liability Act of a Form D with 1980 (42 U.S.C. § 9601 et seq.), the Commission;
Hazardous Substances Transportation Act (vii) To 49 U.S.C. § 1802 et seq.), the best Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon and Indoor Air Quality Research Act (42 U.S.C. § 7401 note, et seq.), the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), comparable state and local laws, and any and all rules and regulations which have become effective prior to the date of this Agreement under any and all of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERaforementioned laws.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Agreement for Sale of Property
Seller’s Representations. SELLER (i) Seller represents and warrants to Purchaser as follows:
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any A. Seller is duly formed and validly existing under the laws of the Securities offered State of its formation and is qualified to conduct business under the laws of the state in which the Property is located.
B. Subject to the approval of the partners of Seller as provided in Section 4(a) above, Seller has the full legal right, power and authority to execute and deliver this Agreement and all documents now or hereafter to be executed by Seller pursuant to this Agreement (collectively, the “Seller’s Documents”), to consummate the transaction contemplated hereby;, and to perform their obligations hereunder and under Seller’s Documents. Seller is the sole owner of the fee simple title to the Property owned by it as set forth on Exhibit A.
(ii) The Debentures, when issued and delivered pursuant C. Subject to the terms of this Agreement, will this Agreement and Seller’s Documents have been duly authorizedauthorized by all requisite action on the part of Seller, executed, issued and delivered and will constitute are the valid and legally binding obligations of the Company Seller, enforceable in accordance with their respective terms.
D. This Agreement and Seller’s Documents do not and will not contravene any provisions of the bylaws, partnership agreements or operating agreements of Seller, or any judgment, order, decree, writ or injunction issued against Seller, or to the knowledge of Seller, any provision of any Laws applicable to Seller, except, in each case, where consents thereto have been obtained. The consummation of the transactions contemplated hereby will not result in a breach or constitute a default or event of default by Seller under any agreement to which Seller or any of its or their assets are subject or bound, except where consents thereto have been obtained, and will not result in a violation of any Laws applicable to either Seller.
E. To the best knowledge of Seller, the rent roll and delinquency reports attached hereto as Schedule 6(a)(i)(E) for the Property are accurate in all material respects as of the date thereof. Neither Seller has received any advance payment of rent (Aother than the current month) on account of any Leases except as set forth on Schedule 6(a)(i)(E).
F. To the best knowledge of Seller, the Leases, Permits and other documents made available for Purchaser’s review in Seller’s management offices are true, correct and complete in all material respects. Each Lease is in full force and effect and has not been amended except as set forth in Schedule 6(a)(i)(E). Neither Seller has entered into any written or oral lease, nor any agreement to lease any portion of its Property except as set forth in Schedule 6(a)(i)(E). Except as set forth in Schedule 6(a)(i)(F), Seller has not received or given any notice of a default under the Leases which has not been cured.
G. To the best knowledge of Seller, Schedule 6(a)(i)(G) lists all Service Contracts, broker agreements and other contracts affecting the Property which will be binding upon Purchaser after the Closing, and the copies of these documents provided to Purchaser are true, correct and complete in all material respects. Each of the Service Contracts listed in Schedule 6(a)(i)(G) is in full force and effect and has not been assigned, modified, amended or rescinded except as specified in Schedule 6(a)(i)(G). Seller has not received or given notice of a default under the Service Contracts which has not been cured.
H. There are no employees of Seller and no employee benefit plans for which Purchaser will be responsible on or after the Closing Date, and there are no union contracts with employees of the Property.
I. There is no pending action, suit, proceeding or investigation to which Seller is a party before any court or other governmental authority with respect to the Property which is likely to have a material adverse impact on the transactions contemplated hereby or any Property except as set forth on Schedule 6(a)(i)(I), and Seller has no knowledge of any of the same being threatened against either Seller or any Property.
J. To the best knowledge of Seller, there are no pending condemnation proceedings that affect all or any portion of any Property and Seller has not received any written notice from any condemning authority threatening a condemnation proceeding that would affect all or any portion of the Property, except as set forth in Schedule 6(a)(i)(J).
K. To the best knowledge of Seller, Seller has not received written notice from any governmental authority requiring the correction of any condition with respect to all or any part of the Property by reason of a violation of any Law except as set forth in Schedule 6(a)(i)(K). Except as set forth in Schedule 6(a)(i)(K), Seller has not received written notice of any pending or (to Seller’s knowledge) threatened judicial or administrative action by adjacent land Seller or other persons or with respect to any easements or other recorded instruments encumbering the Property.
L. To the best knowledge of Seller, Seller has not received any summons, citation, directive, notice of violation, letter, or other related communication from the United States Environmental Protection Agency or State Department of Environmental Protection or other governmental body responsible for administering or enforcing environmental laws relating to Seller or the Property, except as set forth in Schedule 6(a)(i)(K). There are no pending requests for information or inquiries from any governmental authority or any investigations, actions, suits, claims, or proceedings relating to Hazardous Materials in or on the Property except as set forth in Schedule 6(a)(i)(K). During the time period of Seller’s ownership of the Property, to Seller’s knowledge, and except as disclosed in any environmental report provided to or obtained by Purchaser relating to the Property, the Property has been used for the production, deposit, generation, transportation, storage, treatment, or disposal of any Hazardous Materials contrary to applicable Laws, and no Hazardous Materials were disposed of on, in, or at the Property contrary to applicable Laws.
M. Seller has not instituted any tax appeals except as set forth in Schedule 6(a)(i)(M), nor has Seller received written notice of any pending special assessments that affect the Property except as set forth in Schedule 6(a)(i)(M).
N. Seller has not entered into any other agreement or option to sell the Property or any portion thereof other than this Agreement, and no tenant has any option to purchase any portion of the Property except as disclosed in Schedule 6(a)(i)(N).
O. Seller has good title to the Personal Property owned by it and listed in Schedule 1(a)(iv).
P. Seller has not (1) commenced a voluntary case, or had entered against it a petition, for relief under any federal bankruptcy act or any similar petition, order or decree under any federal or state law or statute relative to bankruptcy, insolvencyinsolvency or other relief for debtors; (2) caused, fraudulent conveyancesuffered or consented to the appointment of a receiver, reorganizationbuyer, moratorium and administrator, conservator, liquidator, or similar laws now official in any federal, state, or hereafter foreign judicial or non-judicial proceeding, to hold, administer and/or liquidate all or substantially all of its assets; or (3) made an assignment for the benefit of creditors.
Q. Seller is not a “foreign person” as that term is defined in the Federal Foreign Investment in Real Property Tax Act of 1980 or the 1984 Tax Reform Act, as amended.
R. No unpaid tenant improvement allowances are due under the Leases except as set forth on Schedule 6(a)(i)(R).
S. No commissions are due or will become due to any broker on account of any of the Leases for terms currently in effect relating to creditors' rights and except as set forth on Schedule 6(a)(i)(S).
(Bii) that As used herein, “the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion best knowledge of the court before which any proceedings therefor may be brought and (C) to Seller” shall mean the extent that actual knowledge of Lxxxxx Xxxxxx, after due inquiry of the indemnification provisions contained in property manager for the Registration Rights Agreement may be limited by applicable lawsProperty.
(iii) The Sharesrepresentations and warranties of Seller set forth in Section 6(a)(i) shall be true, when issued accurate and delivered correct in all material respects upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement (except for intervening changes in fact that do not and will not conflict with or result in constitute a breach by SELLER Seller of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charterits covenants hereunder) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or and shall be updated by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body Seller on and as of the United States is legally required Closing Date. The representations and warranties of Seller set forth in this Agreement shall remain operative and shall survive for a period of one hundred eighty (180) days following the issuance Closing Date, and sale shall not be merged therein for such period, and no action or claim based thereon shall be commenced after such period unless the factual basis of the Debentures and (provided no commission claim or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance cause of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained action asserted in the Company's Annual Report on Form 10K for action was first identified with reasonable clarity in a written notice delivered to Seller not later than one hundred eighty (180) days following the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERClosing Date.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Seller’s Representations. SELLER represents Each of the Sellers (who make the following representations only to the extent of the interests owned by each of the Sellers in the Leases) represents, warrants and warrants as followsagrees to and with Buyer that:
(ia) SELLER has As of the Closing, the Leases are in full force and effect, and Sellers have or will have, as of the Closing, fully complied with all of the terms and provisions thereof which it is obligated to perform for all periods up to the Closing. Sellers shall own or otherwise have the right to assign and convey or cause to be assigned and conveyed the Leases, all of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Sellers of not conducted any general solicitation less than eighty three and one third percent (83.33%), prior to reservation of an overriding royalty equal to four percent (4%) of 8/8ths as provided for herein.
(b) There is no litigation or general advertising (as defined in Regulation D) with respect governmental investigation or proceeding pending or, to the knowledge of the Sellers, threatened affecting the Leases or which would have the effect of restraining or prohibiting any of the Securities offered hereby;transactions contemplated by this Agreement.
(iic) The DebenturesThis Agreement constitutes the valid and binding agreement of Sellers in accordance with its terms, when issued and delivered pursuant all instruments required hereunder to be executed by Sellers at the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will Closing shall constitute valid and legally binding obligations agreements of the Company Sellers in accordance with their terms. The execution, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium delivery and similar laws now or hereafter in effect relating to creditors' rights performance of this Agreement and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be transactions contemplated hereby have been duly and validly authorized and issued, fully-paid and non assessable and will not subject by all requisite action on the holders thereof to personal liability by reason part of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a partySellers;
(ivd) This Agreement has been duly authorized, validly executed and delivered on behalf by the Sellers and all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and delivered by the Sellers;
(e) Sellers have incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of SELLER and is a valid and binding agreement of SELLER in accordance with its termsthis transaction for which Buyer shall have any responsibility whatsoever;
(f) Sellers shall not enter into any new agreements or commitments or incur, subject or agree to incur, any contractual obligation or liability (Aabsolute or contingent) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now affecting or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any of the court before Leases which any proceedings therefor may be brought and (C) to extend beyond the extent that the indemnification provisions contained Closing except in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and connection with the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except without the filing written consent of a Form D with the Commission;Buyer; and
(viig) To the best Sellers have relied upon their own independent investigation made by each of them and their respective representatives, if any, and have made such investigation of the Company's knowledge after reasonable investigation, Leases as deemed appropriate under the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleadingcircumstances. Since September 30, 1997, there No Seller has been no material adverse development in given any oral or written representations or assurances from any other Seller or the business, properties, operations, financial condition or results of operations of SELLERBuyer other than as set forth herein.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER With regard to the Seller Interests, the Seller represents and warrants as followsto Buyer, to the best of its knowledge, the following:
(ia) SELLER has There are no preferential rights, rights of first refusal or similar rights in third parties which apply to the Seller Interests, or the Seller shall obtain appropriate waiver(s) of any such rights by the Closing Date, and all necessary consents, approvals and other restrictions on the transfer, sale or assignment of the Seller Interests shall have been waived or obtained, or the time period within which such rights may be exercised shall have expired, provided that if a consent or right as aforesaid cannot conducted any general solicitation be timely obtained or general advertising waived, the transaction may be restructured in a mutually agreeable manner;
(as defined in Regulation Db) There are no material actions, suits, investigations or proceedings pending or threatened against Seller with respect to the Seller Interests, or other set of circumstances with respect to the Seller Interests that would constitute grounds for any of action, suit, investigation or proceeding to be pending or threatened against Seller, in any court or by or before any state, local or federal governmental entity or regulatory agency, whether in the Securities offered hereby;
public domain or confidential as between Seller and any such governmental or regulatory agency. There are no liens, encumbrances, or restrictions on, or other contracts affecting, the Seller Interests except the Permitted Encumbrances set forth in Exhibits D and E. “Permitted Encumbrances” include (i) lessors’ royalties, overriding royalties, net profits interests, production payments, and similar burdens existing prior to the Effective Date; (ii) The Debenturesstatutory liens for taxes that are not yet due and payable; (iii) all consent rights, when issued required notices or other actions customarily sought after such conveyance; (iv) easements, rights-of-way, permits, surface leases and delivered other rights or any restriction on access that do not materially interfere with the operation of the affected lease; (v) the gas purchase contract set forth in Exhibit D; (vi) the operating agreements, mortgages and contracts set forth in Exhibit E, and the liens created therein; and (vii) those instruments of record in the respective counties affecting title.
(c) Buyer has paid all applicable rentals, if required, and performed all necessary operations in a timely fashion so as to maintain the Leases in full force and effect pursuant to the terms of this Agreementthe Leases, will have been duly authorized, executed, issued the rules and delivered and will constitute valid and legally binding obligations regulations of the Company in accordance Bureau of Land Management with respect to federal oil and gas Leases, the rules and regulations of the Commissioner of Public Lands for the State of North Dakota with respect to state oil and gas Leases, and all other applicable laws and regulations. For those of the Seller Leases that are past their primary terms, subject Seller represents to (A) bankruptcythe best of its knowledge that it has taken or caused to be taken all necessary actions as required by state and federal regulations, insolvencyincluding but not limited to required drilling and/or ongoing operational activity, fraudulent conveyance, reorganization, moratorium to maintain the Leases and similar laws now or hereafter appropriate title in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of those certain Seller Leases, so that the court before which any proceedings therefor Seller Leases may be brought and (C) properly transferred to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER represents and warrants as followsSeller hereby makes the following representations to Buyer:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined It is a corporation, duly organized, validly existing, and in Regulation D) with respect good standing under the laws of Delaware and is duly authorized and qualified to any conduct business in all jurisdictions in which the nature of the Securities offered herebybusiness conducted by it makes such qualification necessary and where failure to so qualify would affect its performance of its obligations under this Agreement;
(iib) It has all requisite power and authority to conduct its business and execute and deliver this Agreement and perform its obligations hereunder in accordance with its terms;
(c) The Debenturesexecution, when issued delivery, and delivered pursuant performance of this Agreement have been duly authorized by all requisite corporate action and this Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms;
(d) Neither the execution, delivery or performance of the Agreement conflicts with, or results in a violation or breach of the terms, conditions or provisions of, or constitutes a default under, the organizational documents of Seller or any material agreement, contract, indenture or other instrument under which Seller or its assets are bound, nor violates or conflicts with any Applicable Law or any judgment, decree, order, writ, injunction or award applicable to Seller;
(e) Seller is not in violation of any Applicable Law or Governmental Authorization which violations, individually or in the aggregate, would affect its performance of its obligations under this Agreement;
(f) Seller is the holder of all Governmental Authorizations required to operate and conduct its business now and as contemplated by this Agreement, other than Governmental Authorizations which will be timely obtained in accordance with the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a partyif any;
(ivg) This Agreement has been duly authorizedthere is no pending controversy, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its termslegal action, subject to (A) bankruptcyarbitration proceeding, insolvencyadministrative proceeding or investigation instituted, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion best of Seller’s knowledge threatened, against or affecting, or that could affect, the court before which any proceedings therefor may be brought legality, validity and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery enforceability of this Agreement and or the consummation performance by Seller of the transactions contemplated by this Agreement do not and will not conflict with or result its obligations hereunder in a breach by SELLER any material respect, nor does Seller know of any of the terms basis for any such controversy, action, proceeding or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;investigation; and
(vih) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance Seller has carefully studied and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by reviewed this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationincluding all Attachment, the information contained in the Company's Annual Report on Form 10K for the year ended December 31Appendices and Exhibits attached hereto, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there and has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply become familiar with all applicable securities laws upon resale of the Securitiesits terms and provisions.
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to Buyer, as of the date hereof and as of the Closing, as follows:
(ia) SELLER Attached hereto as Exhibit C is a schedule of all Leases. Seller covenants that it has previously and/or contemporaneously herewith delivered to Buyer true copies of all Leases, and all amendments and agreements relating thereto. Seller covenants that prior to the Closing it will not conducted enter into any general solicitation new lease, or general advertising (as defined in Regulation D) amend, modify, extend, assign or terminate the Leases, or consent to any assignment or subletting under the Leases, without the prior written consent of Buyer which consent shall not be unreasonably withheld or delayed. Except for the Leases there are no other leases or occupancy agreements with respect to any the Property. The Leases are in full force and, except as otherwise provided on Exhibit F (attached hereto), there are no material defaults by either landlord or tenant thereunder;
(b) The rent roll which is attached as Exhibit F hereto (the “Rent Roll”) accurately identifies, as of the Securities offered hereby;date of this Agreement, all Leases, including the terms thereof and any security deposits and prepaid rent held by Seller . All information set forth in the Rent Roll is true and accurate. The Rent Roll shall be mutually satisfactory to the parties and shall list, inter alia, the base rent, additional rent, options to extend, option rent and any rights of first refusal to lease or purchase.
(c) Except as set forth on the Rent Roll, as of the date of this Agreement, all rents which are payable by tenants under their respective Leases are presently current.
(d) Except as set forth on the Rent Roll, no tenant has paid rent for more than one (1) month in advance.
(e) Seller shall, from and after the date of this Agreement to the Closing Date, perform and discharge its duties and obligations and otherwise comply with every material covenant and agreement of the landlord under the Leases.
(f) To the best knowledge of Seller, there are no unpaid assessments or charges for the installation of any utilities servicing the Property or for making connection thereto that have not been fully paid and Seller has no knowledge of any contemplated assessments or charges.
(g) Each service or similar contract (excluding any applicable Permitted Encumbrances) relating to the ownership, operation or use of the Property, is accurately described on Exhibit G which is attached hereto (collectively, the “Service Contracts”). To the best of Seller’s knowledge, (i) all of the Service Contracts are in full force and effect, and (ii) neither Seller nor the vendor under each Service Contract is in default of its obligations thereunder.
(h) Seller has received no written notice alleging that the Property is in violation of any applicable building, environmental or zoning laws, rules, codes or regulations except as described in Exhibit H.
(i) (i) As of the date of this Agreement, Seller is not a party to any currently pending litigation, arbitration or administrative proceeding (1) with any past or present tenant of the Property, (2) with any person or entity having or claiming any interest in or lien on the Property, or (3) which affects or questions Seller’s title to the Property or Seller’s ability to perform its obligations under this Agreement.
(ii) The DebenturesSeller knows of no presently pending litigation, when issued arbitration or administrative proceeding and delivered pursuant no litigation, arbitration or administrative proceeding has been threatened in writing against Seller or the Property which, in either case, affects or questions Seller’s title to, or use of, the Property or any part thereof.
(j) Seller has received no written notice of any condemnation proceeding nor declaration of taking or other similar instrument filed against the Property, but has knowledge that the State of Rhode Island may take a portion of the Land for purposes of constructing a connector to Xxxxx Xxxxxx Xxxxx Xxxxx 000 (the “Route 403 Condemnation”).
(k) To the best of Seller’s knowledge, except as otherwise disclosed on Exhibit H, and except for the two (2) septic systems, (i) there are no underground storage tanks on the Property (other than a water/oil separation tank which will be “closed” prior to Closing in accordance with applicable regulations), and (ii) any underground storage tanks previously on the Property were removed therefrom or filled in place in accordance with applicable law and Seller has obtained closure certificates evidencing such removal.
(l) Except as otherwise disclosed in Exhibit H, Seller has not knowingly used or knowingly permitted the Property to be used, and to the terms best of Seller’s knowledge, the Property has not been used for, storage, transfer, transportation or disposal of dangerous, toxic or hazardous materials, chemicals, wastes or similar substances or for the discharge of the same into the environment other than in the normal course of the businesses of Seller and Seller’s tenants and in accordance with then applicable law. Contemporaneously with the execution of this Agreement, will Seller shall deliver to Buyer (to the extent in Seller’s possession or control) copies of all environmental site assessments, site inspections, agreements and any other environmental due diligence relating to the Property.
(m) Buyer expressly acknowledges and agrees that Seller has disclosed certain environmental conditions described on Exhibit H attached hereto and incorporated herein by this reference and that Buyer is purchasing the Property with full knowledge of such environmental conditions.
(n) The Seller is a corporation (i) duly organized, valid and in good standing under the laws of the State of Delaware, (ii) qualified to conduct business in the State of Rhode Island, and (iii) with full power and authority to execute and deliver this Agreement, and subject to Sections 9.01 and 9.03, to perform its covenants, agreements and obligations hereunder and to sell the Property.
(o) Subject to Sections 9.01 and 9.03, this Agreement and its execution by Seller have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement obligations of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium Seller; and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion transfer of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement Property, and the consummation of the transactions contemplated by this Agreement do not and hereby, will not conflict with or result in a any violation or breach by SELLER of any of the terms indenture or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it Seller or any of its properties the Property is affected or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;.
(vip) No authorization, approval or consent of or filing with any federal, state or local governmental body None of the United States is legally required information to be supplied by the Seller for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained inclusion in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy definitive proxy statement relating to the Annual Shareholders Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for to be filed by the quarter ended June 30, 1997, as filed Seller with the Commission does not SEC, and any amendments or supplements thereto (the “Proxy Statement”), will, at the respective times such documents are filed, and at the time the Proxy Statement or any amendment or supplement thereto is first mailed to the Shareholders or at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be made therein or necessary in order to make the statements made therein, in the light of the circumstance circumstances under which they are were made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiii) SELLER will issue one or more certificates representing The Board of Directors of the Debentures Seller, at a meeting duly called and held, has by vote of those directors present (x) approved and adopted this Agreement and the transactions contemplated hereby, (y) determined that this Agreement and the transactions contemplated hereby are advisable and fair to and in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion best interests of the Debentures. SELLER further warrants Shareholders and (z) recommended that the Debentures Shareholders approve this Agreement and the Shares shall be transferable on transactions contemplated hereby.
(ii) The requisite vote of the books Shareholders to approve this Agreement is the only vote of the holders of any class of capital or series of the Seller’s capital stock or other voting securities necessary to approve the transactions contemplated hereby. The representations and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing warranties in this Section 8.01 are made by Seller in order to facilitate Buyer’s due diligence process and shall affect in any way BUYER'S obligations not survive the Closing and agreement to comply with all applicable securities laws upon resale delivery of the SecuritiesDeed. Notwithstanding the foregoing limitation, the terms of Section 8.01(a)-(e) shall survive the Closing and delivery of the Deed for a period of six (6) months.
Appears in 1 contract
Samples: Purchase and Sale Agreement (BNS Co)
Seller’s Representations. SELLER 1.1 The Seller represents and warrants as followsto the Purchaser that:
(ia) SELLER The Seller is the registered and beneficial owner of the Claims and holds the right to transfer title to the Claims and to explore and develop the Claims;
(b) The Seller holds the Claims free and clear of all liens, charges and claims of others, and the Seller has not conducted any general solicitation a free and unimpeded right of access to the Claims and has use of the Claims surface for the herein purposes;
(c) The Claims have been duly and validly located and recorded in a good and miner-like manner pursuant to the laws of the Province of British Columbia and are in good standing in British Columbia as of the date of this Agreement;
(d) There are no adverse claims or general advertising (as defined in Regulation D) with respect challenges against or to the Seller’s ownership of or title to any of the Securities offered herebyClaims nor to the knowledge of the Seller is there any basis therefore and there are no outstanding agreements or options to acquire or purchase the Claims or any portion thereof;
(iie) The DebenturesSeller has the full right, when issued authority and delivered pursuant capacity to enter into this Agreement without first obtaining the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights consent of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation other person or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement body corporate and the consummation of the transactions transaction herein contemplated by this Agreement do not and will not conflict with or result in a any breach by SELLER of any of the terms covenants or provisions ofagreements contained in, or constitute a default under, or result in the certificate creation of incorporation (or charter) or by-laws any encumbrance under the provisions of SELLER, or any indenture, mortgage, deed of trust agreement or other material agreement or instrument whatsoever to which SELLER the Seller is a party or by which it he is bound or to which he is subject; and
(f) No proceedings are pending for, and the Seller is unaware of any basis for, the institution of its properties or assets are boundany proceedings which could lead to the placing of either Seller in bankruptcy, or in any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;position similar to bankruptcy.
(vig) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated The Seller agrees to hold all claims covered by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained agreement “in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary trust” indefinitely in order to make comply with the statements therein, laws of the Province of British Columbia or until such time as Purchaser has made other arrangements.
1.2 The representations and warranties of the Seller set out in paragraph 1.1 above form a part of this Agreement and are conditions upon which the Purchaser has relied in entering into this Agreement and shall survive the acquisition of any interest in the light of Claims by the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERPurchaser.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Mineral Property Purchase Agreement (High End Ventures, Inc.)
Seller’s Representations. SELLER Seller hereby represents and warrants the following to Buyer for the purpose of inducing Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as followsof the date hereof and as of the Closing Date and shall survive the closing and conveyance of title to the Property hereunder:
(i) SELLER has not conducted any general solicitation or general advertising (as defined a. Seller is a duly organized, validly existing limited liability company in Regulation D) with respect to any good standing under the laws of the Securities offered State of Delaware. Seller has the legal power, right and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transaction contemplated hereby;. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller hereby represent and warrant that they have the power, right and authority to bind Seller.
(ii) The Debenturesb. All requisite action has been taken by Seller and all requisite consents have been obtained in connection with the entering into this Agreement and the instruments and documents referenced herein, when issued and delivered the consummation of the transaction contemplated hereby, and no consent of any other party is required.
c. This Agreement is, and all agreements, instruments and documents to be executed by Seller pursuant to the terms of this AgreementAgreement shall be duly executed by and are, will have been duly authorizedor shall be, executed, issued and delivered and will constitute valid and legally binding obligations of the Company upon Seller and enforceable in accordance with their respective terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of d. Neither the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and nor the consummation of the transactions contemplated by this Agreement do not and will not conflict with or hereby shall result in a breach by SELLER of any of the terms or provisions of, or constitute a default underunder any agreement, the certificate of incorporation (or charter) or by-laws of SELLERdocument, instrument, or any indenture, mortgage, deed of trust or other material agreement or instrument obligation to which SELLER Seller is a party or by which it or any of its properties or assets are Seller may be bound, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Seller or to the Property.
e. Except as disclosed to Buyer, there is no claim, action, litigation, arbitration or other proceeding pending against Seller which relates to the Property or the transactions contemplated hereby and, to Seller's actual knowledge, there is currently no governmental investigation, threatened litigation or arbitration proceedings to which Seller is, or would be, a party which relates or would relate to the Property.
f. The Property shall be sold subject to those certain Leases (the "Leases") as shown on Exhibit "C" hereto. The Leases constitute all of the leases currently in effect at the Property and no other parties (other than the tenants named in the Leases) have any right to possession of all or any portion of the Property. Seller has previously delivered to Buyer true and complete copies of all of the Leases, and any amendments or modifications thereto. Prior to the Close of Escrow, the Leases shall not be modified or amended nor shall Seller enter into any new leases or terminate any existing applicable decreeLeases (or any related guaranties) without the prior written consent of Buyer, judgment or order of which consent shall not be unreasonably withheld. However, Buyer shall pay the broker's commissions and tenant improvement allowances payable in connection with any courtsuch new leases.
g. Except for the agreements (the "Service Contracts") set forth in Exhibit "D" attached hereto, federal or state regulatory body, administrative agency there are no contracts or other governmental body having jurisdiction over SELLER agreements which affect or will affect or which are or will be obligations of the Buyer, the Property or the Improvements after the Close of Escrow. All of the Service Contracts may be terminated without penalty or other payment upon no more than thirty (30) days notice. Seller shall not, after the date of this Agreement, modify, extend or otherwise change any of the Service Contracts or enter into any new service contracts or any of its properties other obligations or assets;
(vi) No authorization, approval or agreements affecting the Property without the prior written consent of Buyer, which consent shall not be unreasonably withheld.
h. There are no pending or, to Seller's actual knowledge, contemplated condemnation, annexation or filing with other proceedings affecting the Property or any part thereof.
i. To Seller's actual knowledge, without inquiry, the Property does not contain any Hazardous Materials except for substances and chemicals used in the ordinary operation of the Property (e.g. cleaning products, paints, toner, insecticides and normal medical uses). Hazardous Materials shall mean any flammable explosives, radioactive materials, hazardous wastes or substances, toxic wastes or substances and other related materials including without limitation any substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under any applicable federal, state or local governmental body laws or regulations.
j. To Seller's actual knowledge, without inquiry, the Property is not in violation, and Seller has not received any notice of any violation of, any law, ordinance, regulation, order or requirement applicable to the United States is legally required for the issuance and sale of the Debentures and (provided no commission Property including without limitation, requirements imposed under any recorded covenants, conditions, restrictions, easements or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) rights affecting the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;Property.
(vii) k. To the best of the Company's knowledge after reasonable investigationSeller=s knowledge, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating operating statements and rent roll delivered to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they Buyer are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERtrue and complete.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to Buyer, as of the date hereof and as of the Closing, as follows:
(ia) SELLER Attached hereto as Exhibit C is a schedule of all Existing Leases. Seller covenants that it has previously and/or contemporaneously herewith delivered to Buyer true copies of all Existing Leases, and all amendments and agreements relating thereto. Seller covenants that prior to the Closing it will not conducted enter into any general solicitation new lease, or general advertising (as defined in Regulation D) amend, modify, extend, assign or terminate any Existing Lease or the Hexagon Lease, or consent to any assignment or subletting under any Existing Lease or the Hexagon Lease, without the prior written consent of Buyer which consent shall not be unreasonably withheld or delayed. Except for the Existing Leases there are no other leases or occupancy agreements with respect to any of the Securities offered herebyProperty. The Existing Leases are in full force and effect and there are no material defaults by either landlord or tenant thereunder;
(iib) The Debenturesrent roll which is attached as Exhibit F hereto (the "Rent Roll") accurately and completely identifies, when issued and delivered pursuant to as of the terms date of this Agreement, will have been duly authorizedall Existing Leases and the Hexagon Lease, executed, issued including the terms thereof and delivered any security deposits and will constitute valid prepaid rent held by Seller. All information set forth in the Rent Roll is true and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may accurate. The Rent Roll shall be subject to equitable defenses and mutually satisfactory to the discretion parties and shall list, inter alia, the base rent, additional rent, options to extend, option rent and any rights of the court before which any proceedings therefor may be brought and (C) first refusal to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawslease or purchase.
(iiic) The SharesExcept as set forth on the Rent Roll, when issued and delivered upon conversion of the Debentures in accordance with all rents which are payable by tenants under their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There respective Existing Leases are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawspresently current.
(vd) The execution Except as set forth on the Rent Roll, no tenant has paid rent for more than one (1) month in advance.
(e) Seller shall, from and delivery after the date of this Agreement to the Closing Date, perform and the consummation discharge its duties and obligations and otherwise comply with every material covenant and agreement of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER of any of landlord under the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;Existing Leases.
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(viif) To the best knowledge of Seller, water, gas and electric lines to service the Company's knowledge after reasonable investigation, Property are located on or adjacent to the information contained in the Company's Annual Report on Form 10K Property directly from a public street; there are no unpaid assessments or charges for the year ended December 31, 1996, Proxy statement installation of any such utilities or for making connection thereto that have not been fully paid and Seller has no knowledge of any contemplated assessments or charges.
(g) Each service or similar contract (excluding any applicable Permitted Encumbrances) relating to the Annual Meeting of Shareholders held on June 26ownership, 1997 operation or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light use of the circumstance Property, is accurately described on Exhibit G which is attached hereto (collectively, the "Service Contracts"). To the best of Seller's knowledge, (i) all of the Service Contracts are in full force and effect, and (ii) neither Seller nor the vendor under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development each Service Contract is in the business, properties, operations, financial condition or results default of operations of SELLERits obligations thereunder.
(viiih) SELLER will issue one Seller has received no written notice alleging that the Property is in violation of any applicable building, environmental or more certificates representing the Debentures in the name of BUYER in such denominations zoning laws, rules, codes or regulations.
(in multiples of $25,000i) (i) Seller is not a party to be specified by BUYER prior to closing and will issue one any litigation, arbitration or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion administrative proceeding (1) with any past or present tenant of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable Property, (2) with any person or entity having or claiming any interest in or lien on the books and records of SELLER as and Property, or (3) which affects or questions Seller's title to the extent provided in the Transaction Documents, subject Property or Seller's ability to compliance with Federal and State securities laws. Nothing in perform its obligations under this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (BNS Co)
Seller’s Representations. SELLER Seller represents and warrants as follows:
(i) SELLER The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, and has all requisite corporate power and authority to carry on its business as now conducted and as currently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on the business or the properties of the Company and its subsidiaries taken as a whole. To its knowledge, the Company is not the subject of any pending, threatened or contemplated investigation or administrative or legal proceedings by the Internal Revenue Service, the taxing authorities of any State of local jurisdiction, or the Commission, or any State Securities Commission, or any other governmental entity.
(ii) Seller has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;.
(iiiii) The DebenturesStatement of Designation, when issued executed and delivered pursuant to the terms of this Agreement, will have been duly authorizedauthorized and executed and the Preferred, executed, when issued and delivered will be fully paid and will non assessable constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsbrought.
(iiiiv) The Shares, when issued and delivered upon conversion of the Debentures Preferred or exercise of the Warrants in accordance with their terms, will be duly and validly authorized and issued, fully-issued fully paid and non assessable and will not subject the holders Buyers thereof to personal liability by reason of being such holdersBuyers. There are no preemptive rights of any shareholder of SELLER Seller with respect to the Shares contained in SELLER'S Certificate Seller's Articles of Incorporation or any agreement to which SELLER Seller is a party;. The Shares, when issued and delivered upon conversion will be "restricted securities" as defined in Rule 144(a)(3) of the Securities Act and as such will bear the following restrictive legend:
(iva) This Agreement has The securities evidenced hereby have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or under any applicable state securities laws, and they cannot be offered for sale, sold, transferred, pledged or otherwise hypothecated except in accordance with the registration requirements of the Securities Act and such state laws or upon delivery to the Corporation of an opinion of legal counsel satisfactory to the Corporation that an exemption from registration is available.
(v) The Transaction Documents, including the Statement of Designation and Warrants, have been duly authorized, validly executed and delivered on behalf of SELLER Seller and each is a valid and binding agreement of SELLER Seller in accordance with its terms, terms and subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now new or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses deficiencies and to the discretion of the court before which any proceedings therefor thereafter may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsbrought.
(vvi) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER Seller of any of the terms or provisions of, or constitute a default under, the certificate Articles of incorporation Incorporation (or charter) or by-laws of SELLERSeller, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it or any of its properties proprietors or assets agents are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER Seller or any of its properties or assets;.
(vivii) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States States, is legally required for the issuance and sale of the Debentures Preferred and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER Seller for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Preferred in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D and Form 8-K with the Commission;.
(viiviii) To the best of the Company's knowledge knowledge, after reasonable investigation, the information contained in the Company's Annual Report on Form 10K -KSB for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or and Quarterly Report on Form 10-Q QSB for the quarter ended June September 30, 1997, 1997 as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance circumstances under which they are made, were made not misleading. Since September 30, 19971997 and except as set forth on Schedule 1 hereto, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERSeller.
(viiiix) SELLER Seller will issue one or more certificates representing the Debentures Preferred in the name of BUYER Buyer in such denominations (in multiples of $25,000) to be specified by BUYER Buyer prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by the Buyer upon conversion of the DebenturesPreferred. SELLER Seller further warrants that the Debentures Preferred and the Shares shall be transferable on the books and records of SELLER Seller as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State States securities laws. Nothing in this Section shall affect .
(x) The Company is not involved in any way BUYER'S obligations litigation which if determined adversely to the Company, could reasonably be expected to have a material adverse effect upon the Company's financial position.
(xi) The Company is eligible to register with the Securities and agreement to comply with all applicable securities laws upon Exchange Commission, the Common Stock for resale of the Securitieson Form S-3.
(xii) No other entities currently hold registration rights except as listed: Maxxim Medical Inc.; Vicki C. Belcher; James V. Warren; and J.L. (Skip) Moore.
Appears in 1 contract
Samples: Private Securities Subscription Agreement (Henley Healthcare Inc)
Seller’s Representations. SELLER represents and warrants 4.1 SELLERS' REPRESENTATIONS. Sellers represent to Buyer as followsof the date hereof that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller, Environmental Energy, Inc. is a corporation duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The DebenturesState of Delaware. Seller, when issued Environmental Operating, Inc. is a corporation duly organized, validly existing and delivered pursuant to in good standing under the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations laws of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy State of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsTennessee.
(iiib) The SharesLimited Partnerships are partnerships (and Environmental Holding Company, when issued LLC, a California limited liability company is) duly organized, validly existing and delivered upon conversion in good standing under the laws of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason State of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsCalifornia.
(vc) The execution Sellers have all requisite power and delivery authority to carry on its business as presently conducted, to conduct the affairs of the Limited Partnerships, 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 do not and will not violate, nor be in conflict with or result in a breach by SELLER with, any provision of any of the terms or provisions ofits articles, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERor governing documents, the Limited Partnership Agreements, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER it is a party or by which it or any of its properties or assets are is bound, or any existing applicable judgment, decree, judgment order, statute, rule or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsregulation applicable to Sellers and the Limited Partnerships;
(vid) No authorizationThe execution, approval or delivery and performance of this Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite corporate action on the part of Sellers and by the unanimous consent of or filing with any federal, state or local governmental body the Limited partners of the United States is legally Limited Partnerships.
(e) This Agreement constitutes, and all documents and instruments required for the issuance hereunder to be executed and sale delivered by Sellers at Closing constitute, legal, valid and binding obligations of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Sellers in accordance with their respective terms, as subject to applicable bankruptcy and other similar laws of general application with respect to creditors;
(f) There are no bankruptcy, reorganization or arrangement proceedings pending or being contemplated by, or to the knowledge of the officers and directors of Sellers, threatened against Sellers or the Limited Partnerships;
(g) No broker or finder has acted for or on behalf of Sellers or the Limited Partnerships in connection with this Agreement or the transactions contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained and no broker or finder is entitled to any brokerage or finders fee or commission in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect respect thereof based in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.on agreements, arrangement or understandings made by or on
Appears in 1 contract
Samples: Purchase and Sale Agreement (Daugherty Resources Inc)
Seller’s Representations. SELLER represents Seller represents, warrants and warrants as followscovenants to AFG that:
(ia) SELLER Seller is the sole owner of the Accounts Receivable and none of the Accounts Receivable have been previously assigned or encumbered in any manner. Seller has not conducted any general solicitation the full power and authority to sell each of the Accounts Receivable and has duly authorized their sale to AFG through this Purchase and Sale Agreement.
(b) Each Account Receivable is current and presently due to Seller; and is for the amount stated in Attachment A. There are no set-offs, deductions, disputes, contingencies or general advertising (as defined in Regulation D) with respect to counterclaims against Seller on any of the Securities offered hereby;
Accounts Receivable. Except for the customer's financial ability to pay or bankruptcy each Account Receivable is due and collectible in full no later than ninety (ii90) The Debentures, when issued and delivered pursuant to days after the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsdate on each said Account Receivable.
(iiic) The Shares, when issued Each Account Receivable is current and delivered presently due and owing to Seller and payment is not contingent upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights fulfillment of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or other obligation at any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawstime.
(vd) The execution AFG shall be the sole owner and delivery of this Agreement and the consummation holder of the transactions contemplated by this Agreement do not and will not conflict Accounts Receivable, together with any products, proceeds, contract rights and/or claims relating to the Accounts Receivable, all of which are to be deemed a part of the Accounts Receivable; however, should Seller receive payment of all or result in a breach by SELLER any portion of any of the terms or provisions ofAccounts Receivable, or constitute a default underSeller shall so notify AFG immediately and shall hold all checks and other instruments received in trust for AFG and shall deliver to AFG such checks and other instruments (or, at the certificate direction of incorporation (or charterAFG the proceeds thereof) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERwithout delay.
(viiie) SELLER will issue one Seller presents that any payments received by it on Accounts Receivable assigned to AFG shall be deemed "Trust Funds" and if not remitted to AFG shall constitute a debt which can not be discharged in Bankruptcy or more certificates representing the Debentures in the name of BUYER in such denominations other laws intended to give debtor relief.
(in multiples of $25,000f) to be specified by BUYER prior to closing Seller hereby ratifies and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion confirms each of the Debenturesstatements made in its most current Corporate Resolution delivered to AFG authorizing the sale of Accounts Receivable to AFG. SELLER further warrants that In deciding to purchase the Debentures Accounts Receivable, AFG has materially relied upon the documents and the Shares shall be transferable on the books other information provided by Seller and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing upon Seller's representations contained in this Section shall affect in any way BUYER'S obligations section 2 herein. All representations, warranties, indemnities and agreement to comply with all applicable securities laws upon resale covenants of the SecuritiesSeller under this Agreement shall survive the termination for any reason of this Agreement until such time as AFG has collected in full any and all Accounts Receivable or monies due it under this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Medley Credit Acceptance Corp)
Seller’s Representations. SELLER Seller hereby makes the following representations and warranties as of the Effective Date, which representations and warranties shall be deemed to be remade by Seller to Buyer as of the Closing Date. All representations and warranties that are expressly qualified “to Seller’s knowledge” shall be deemed to refer to actual (but not constructive) knowledge, without any duty of inquiry or personal liability for the same, of Ax Xxxxxxxx (“Seller’s Representative”) without Seller’s Representative having any obligation to make an independent inquiry or investigation. In the event of any breach of any representation or warranty by Seller above, Seller’s Representative shall not be personally liable for such breach and recourse may not be had against Seller’s Representative personally. Seller represents and warrants as follows:
(i) SELLER that Seller’s Representative is the person charged with the day-to-day operation of the Property and the person most likely to have knowledge of the truth and accuracy of the below representations and warranties by Seller. Seller has not conducted made and shall have no duty to make any general solicitation special inquiry or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER investigation of any of the terms matters referred to in this Section for purposes of making the representations and warranties stated below. Seller shall not be deemed to have breached any warranty or provisions ofmade any misrepresentation if it has disclosed the truth of the matter in question in a Seller Update Certificate (as defined below). Except as explicitly set forth in this Agreement, or constitute a default under, Seller makes no representation concerning the certificate of incorporation (or charter) or by-laws of SELLER, or Property and Buyer agrees that any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or representation made by which it Seller or any of its properties or assets are boundagents prior to date of this Agreement is not binding upon Seller, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreementnor may Buyer rely thereto, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided such representation is explicitly set forth in this Agreement. If, prior to the Transaction DocumentsClosing Date, subject to compliance with Federal and State securities laws. Nothing Seller acquires actual knowledge of any facts or circumstance which would cause the representations contained in this Section shall affect in any way BUYER'S obligations and agreement 14.2 to comply with all applicable securities laws upon resale become untrue if such representations were made as of the Securitiesdate Seller becomes aware of such fact or circumstance, Seller shall immediately disclose the same to Buyer by delivery to Buyer of a written notice duly executed by Seller (herein the “Seller Update Certificate”) identifying any such representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change. If, despite the changes or other matters described in such Seller Update Certificate, the Closing occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in such Seller Update Certificate and Seller shall have no liability to Buyer for any such changes, matters or statements made in such Seller Update Certificate except to the extent the same are materially inaccurate when made in such Seller Update Certificate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Real Estate Trust Inc)
Seller’s Representations. SELLER Subject to the Seller’s right to update Seller’s representations and warranties pursuant to the terms hereof, Seller represents and warrants to Buyer solely with respect to Seller and the Property that as follows:of the date hereof the following representations and warranties are true in all material respects and the same shall be true in all material respects as of the Closing Date (except for (a) changes in facts permitted hereunder including, without limitation, as a result of actions taken by Seller in accordance with Article XV hereof or occurring from events beyond the reasonable control of Seller and (b) Seller’s right to update all of the Exhibits and Schedules hereto in order to make such representations and warranties true as of the Closing Date; provided, however, that the foregoing right to update and amend the Exhibits and Schedules hereto shall not be deemed to permit Seller to default under any covenant made by Seller herein):
(a) Seller is duly organized, validly existing and in good standing under the laws of the State of Nevada, and Seller has full power and authority to execute and deliver this Agreement and all other documents now or hereafter to be executed and delivered by it pursuant to this Agreement (the “Seller’s Documents”) and to perform all obligations arising under this Agreement and the Seller’s Documents. This Agreement constitutes, and the Seller’s Documents will each constitute, the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, subject to bankruptcy, reorganization and other similar laws affecting the enforcement of creditors’ rights generally and except as may be limited by general equitable principles.
(b) Exhibit A-2 attached hereto is a true and complete list of all tenants (which may be under their trade name or fictitious name) under the Leases (except for any tenants for Master Lease Space or Earnout Space) as of the date set forth on Exhibit A-2. True and complete copies of all Leases have been made available to Buyer. Except as otherwise specifically set forth in Exhibit B attached hereto: (i) as of the date hereof all of the Leases are in full force and effect in accordance with their respective terms; and (ii) no Tenant has given written notice of default to Seller nor has Seller actual knowledge of any material monetary default by any Tenant under its Lease, except as set forth on Exhibit B and (ii) all Tenants pay their share of CAM, Taxes and insurance except as set forth in the Leases.
(c) Exhibit C attached hereto is a true and complete list of all Service Contracts affecting the Property (subject to amendments, modifications or supplements permitted pursuant to Article XV). Except as set forth on Exhibit C, (i) to Seller’s knowledge all of the Service Contracts are in full force and effect in accordance with their respective terms, and (ii) as of the date hereof, Seller has not received from any counter party to any Service Contract a written notice claiming that Seller is in any default under such Service Contract, which material default remains uncured.
(d) Seller has not received written notice of any pending or threatened condemnation or eminent domain proceedings affecting the Property or any part thereof and to Seller’s knowledge no condemnation or eminent domain proceeding is anticipated.
(e) To Seller’s knowledge, except as set forth on Exhibit G attached hereto, there are no pending actions, suits, arbitrations, claims or proceedings affecting the Property or Seller which would have an adverse effect on the Property or Seller’s ability to perform under this Agreement and Seller has not received any written notices of any such threatened or contemplated actions, suits, arbitrations, claims or proceedings which claims would not be fully covered by insurance (subject to deductibles).
(f) Except as set forth on Exhibit G-1 attached hereto, Seller has not received any notice of any current violations of any laws, statutes, ordinances, regulations or other requirements of any governmental agency in connection with or related to the Property, including any violations of any environmental laws and to Seller’s knowledge no such violations exist as of the date hereof.
(g) Attached as Exhibit E is a true, correct and complete list of (i) all leasing commission agreements entered into by Seller and in effect as of the date hereof (collectively, “Listing Agreements”), and (ii) all improvements and tenant allowances required to be made by the Seller. Except as otherwise set forth in Section 6.2 hereof and Exhibit E, no amounts are presently due or may become due and owing thereunder.
(h) Attached as Exhibit I is a list of all Security Deposits held by Seller as of the date hereof.
(i) SELLER has Seller represents and warrants that Seller does not conducted have any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued employees and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited there are no unemployment taxes due by applicable lawsSeller.
(iiij) The SharesExcept as set forth on Exhibit G-2 attached hereto, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are Seller has received no preemptive rights notice of any shareholder of SELLER with respect special assessments and to Seller’s knowledge no special assessments pertaining to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperty are anticipated.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Seller’s Representations. SELLER 4.1 Seller's Representations. Seller represents and warrants to Buyer as followsof the date hereof that:
(i) SELLER has not conducted any general solicitation or general advertising (as defined a. Seller is a limited partnership duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered herebyState of Texas;
(ii) The Debenturesb. Seller has all requisite power and authority to carry on its business as presently conducted, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of 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 do not and will not violate, nor be in conflict with or result in a breach by SELLER with, any provision of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, Seller’s partnership agreement or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER it is a party Party or by which it or any of its properties or assets are is bound, or any existing applicable judgment, decree, judgment order, statute, rule or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsregulation applicable to Seller;
(vi) No authorizationc. The execution, approval or consent delivery and performance of or filing with any federalthis Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite partnership action on the part of Seller;
d. This Agreement constitutes, state or local governmental body and all documents and instruments required hereunder to be executed and delivered by Seller at Closing will constitute, legal, valid and binding obligations of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller in accordance with their respective terms, as subject to applicable bankruptcy and other similar laws of general application with respect to creditors;
e. There are no bankruptcy, reorganization or arrangement proceedings pending, being contemplated by, or to the actual knowledge of the partners of Seller, threatened against Seller;
f. No broker or finder have acted for or on behalf of Seller in connection with this Agreement or the transactions contemplated by this Agreement, except the filing and no broker or finder is entitled to any brokerage or finder’s fee or commission in respect thereof based in any way on agreements, arrangements or understandings made by or on behalf of a Form D with the CommissionSeller;
(vii) To the best of the Company's g. There is no demand or suit, action or other proceeding pending, or to Seller’s knowledge after reasonable investigationthreatened, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement before any court or governmental agency relating to Seller or the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERAssets.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) h. Seller, to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as its knowledge, has not violated, and to Seller’s knowledge there are no alleged violations by Seller of, any applicable rules, regulations or orders of any governmental agency having jurisdiction over the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall Assets which would affect in any way BUYER'S obligations material respect the value of the Assets;
i. Seller is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended;
j. Seller is not in default under and no condition exists that with notice or lapse of time or both would constitute a default under any agreement to comply with all applicable securities laws upon resale which Seller is a Party or by which Seller is bound and to which any of the Securities.Assets are subject;
k. Exhibit “A-3” sets forth the Basic Documents of which Seller has knowledge; l. To the knowledge of Seller, all royalties, rentals and other payments due under the Leases, which would have an adverse material impact if not paid, have been properly and timely paid, and all conditions necessary to keep the Leases in force have been fully performed (other than the payment of the lease bonus under the Cxxx Lease described in Section 3.1(a)(2); such lease bonus amount being the total amount required under the Cxxx Lease necessary to exercise the Option Agreement (defined below) and enter into the related lease);
Appears in 1 contract
Seller’s Representations. SELLER Seller represents and warrants to Purchaser the following (collectively, “Seller’s Representations”) as followsof the Effective Date and as of the Closing Date, provided, however, that Purchaser’s remedies in the instance that any of Seller’s Representations are known to be untrue as of the Closing Date, are limited to those set forth in Article XII:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to state of its formation set forth in the terms initial paragraph of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms; and, subject to (A) bankruptcyinternal authorization as set forth in Section 15.15, insolvency, fraudulent conveyance, reorganization, moratorium has or at the Closing will have the entity power and similar laws now or hereafter in effect relating authority to creditors' rights sell and (B) that convey the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses Property and to execute the discretion of the court before which any proceedings therefor may documents to be brought executed by Seller and (C) prior to the extent that Closing will have taken as applicable, all corporate or equivalent entity actions required for the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement Agreement, and the consummation of the transactions contemplated by this Agreement.
(b) Subject to Section 15.15, Seller has all necessary approvals to execute and deliver this Agreement do not and perform its obligations hereunder, and to Seller’s knowledge, no other authorization or approvals, whether of governmental bodies or otherwise, will be necessary in order to enable Seller to enter into or comply with the terms of this Agreement.
(c) Subject to Section 15.15, this Agreement and the other documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will have been duly entered into by Seller, and will not conflict with constitute legal, valid and binding obligations of Seller. To Seller’s knowledge, neither this Agreement nor anything provided to be done under this Agreement violates or result in a breach by SELLER of shall violate any of the terms or provisions ofcontract, or constitute a default underdocument, the certificate of incorporation (or charter) or by-laws of SELLERunderstanding, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it is bound.
(d) Seller is a “United States person” within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
(e) To Seller’s knowledge, the Leases provided to Purchaser by Seller are true, correct and complete copies of the Leases between Seller and the tenants, including any and all amendments, renewals and extensions thereof. The Schedule of Existing Tenants attached hereto as Exhibit B was prepared for Seller by Seller’s third party manager of the Property, and to Seller’s knowledge, is true and correct in all material respects and lists all Leases as of the Effective Date, and is the schedule of Leases maintained by Seller and relied on by Seller for internal administration purposes.
(f) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to the Property, which violation or alleged violation has not been corrected.
(g) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any pending or threatened condemnation proceeding against the Property or any formal notice of condemnation with respect to the Property.
(h) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to Hazardous Materials on the Property.
(i) Seller (which for this purpose includes its properties partners, members, principal stockholders and any other constituent entities (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <xxxx://xxx.xxxxx.xxx/offices/enforcement/ofac/sdn/t11sdn.pdf> or assets are boundat any replacement website or other replacement official publication of such list and (ii) is currently in compliance with and will at all times during the term of this Agreement (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or any existing applicable decreeSupport Terrorism), judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;action relating thereto.
(vij) No authorizationTo Seller’s knowledge, approval no pending or consent of threatened litigation involving the Property or filing with any federal, state or local governmental body Seller exists which if determined adversely would restrain the consummation of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as transactions contemplated by this Agreement or would declare illegal, invalid or non-binding any of Seller’s obligations or covenants to Purchaser pursuant to this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiik) SELLER will issue one To Seller’s knowledge, the Service Agreements provided to Purchaser by Seller are true, correct and complete copies of the Service Agreements relevant to the Property, including any and all amendments, renewals and extensions thereof.
(l) There are no employees who are employed by Seller or more certificates representing the Debentures any property manager engaged by Seller in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one operation, management or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion maintenance of the DebenturesProperty whose employment will continue after Closing. SELLER further warrants that On and after the Debentures Closing, there will be no obligations concerning any pre-Closing employees of Seller, nor will there be any property management agreement which will be binding on Purchaser or the Property.
(m) The rent roll provided by Seller to Purchaser as part of the Property Documents is the rent roll used by Seller for its own property management purposes in connection with the Property.
(n) Except as set forth on Schedules 10.5, 10.6 and the Shares shall be transferable on the books 10.7 and records of SELLER as and with respect to the extent provided in Xxxxxxxxx Dental Lease Amendment, there are no unpaid leasing commissions, tenant improvement costs or free rent for which Seller is responsible as landlord under the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in primary term of any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale Leases as of the SecuritiesEffective Date (excluding any renewals, extensions or expansions under Leases exercised after the Effective Date).
Appears in 1 contract
Samples: Purchase and Sale Agreement (NorthStar Real Estate Income II, Inc.)
Seller’s Representations. SELLER Seller hereby warrants and represents to Purchaser, as of the Effective Date and warrants as followsof the Closing Date, that:
(a) Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, is qualified to do business in the State of Florida and has all requisite corporate power and authority to: (i) SELLER has not conducted any general solicitation or general advertising (own, lease and operate the Property and to carry on its business as defined in Regulation D) with respect to any of the Securities offered hereby;
now being conducted; (ii) The Debenturesexecute this Agreement and all other agreements, when issued instruments and delivered pursuant documents to be executed by it in connection with the terms consummation of the transactions contemplated by this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights ; and (Biii) that perform its obligations and consummate the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawstransactions contemplated hereby.
(iiib) The Sharesexecution, when issued delivery and delivered upon conversion performance of this Agreement and the Debentures in accordance with their terms, will be consummation of transactions contemplated hereby by Seller have been duly and validly authorized by all necessary company action, and issued, fully-paid and non assessable and will not subject no other company proceedings on the holders thereof part of Seller are necessary for it to personal liability by reason of being such holdersauthorize this Agreement or to consummate the transactions contemplated hereby. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, and validly executed and delivered on behalf of SELLER by Seller and, assuming due authorization, execution and delivery by Purchaser, is a legal, valid and binding agreement obligation of SELLER Seller, enforceable against Seller in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and similar laws now or hereafter in effect of general applicability relating to or affecting creditors' ’ rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsgeneral equity principles.
(vc) The execution, delivery or performance of this Agreement by Seller will not result in a breach or violation of, or default under, (i) the terms, conditions or provisions of Seller’s certificate of organization, operating agreement or any other governing documents; (ii) any law applicable to Seller or any portion of the Timber; or (iii) any permit, license, order, judgment or decree of any governmental authority by which Seller or the Timber is or may be bound, excluding from the foregoing clauses (ii) and (iii) such breaches, violations or defaults that would not be reasonably likely, individually or in the aggregate, to have an adverse effect on the Timber or on Seller’s ability to perform its obligations under this Agreement.
(d) There are no approvals, consents or registration requirements with respect to any governmental authority that are or will be necessary for the valid execution and delivery by Seller of this Agreement and Agreement, or the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER of any of the terms or provisions ofhereby, other than those which (i) have been obtained, or constitute (ii) are of a default underroutine nature and not customarily obtained or made prior to execution of purchase and sale agreements in transactions similar in nature and size to those contemplated hereby and where the failure to obtain the same would not, individually or in the certificate of incorporation aggregate, have a material adverse effect on the Timber or on Seller’s ability to perform its obligations under this Agreement.
(e) There is no pending or, to Seller’s knowledge, threatened action or charterproceeding (including, but not limited to, any condemnation or eminent domain action or proceeding) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of before any court, federal or state regulatory body, administrative governmental agency or other governmental body having jurisdiction over SELLER arbitrator which may materially adversely affect Seller’s ability to perform this Agreement or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall may materially adversely affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.the
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to Purchaser that, as followsof the date hereof and as of the Closing Date, the following are true and accurate statements in all material aspects:
(i) SELLER has not conducted any general solicitation or general advertising (as defined Seller is duly formed and validly existing in Regulation D) with respect to any the jurisdiction of its formation, and Seller is in good standing under the laws of the Securities offered hereby;
(ii) The Debenturesjurisdiction of its formation or organization. Seller is duly and legally authorized to enter into this Agreement, when issued and delivered pursuant Seller’s representative is authorized to act on behalf of and bind Seller to the terms of this Agreement.
(ii) Seller has taken all necessary action to authorize the execution, will have been duly authorized, executed, issued delivery and delivered performance of this Agreement and will constitute valid has the power and legally binding obligations of the Company in accordance with their terms, subject authority to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium execute and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses deliver this Agreement and to perform its obligations hereunder. Seller has complied with all laws, rules, regulations, charter provisions and bylaws necessary to consummate the discretion transactions contemplated hereby, and Seller’s representative is authorized to act on behalf of the court before which any proceedings therefor may be brought and (C) bind Seller to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsterms of this Agreement.
(iii) The SharesAssuming due authorization, when issued execution and delivered upon conversion delivery by Purchaser, this Agreement and all the obligations of Seller hereunder are the Debentures legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their termsthe terms of this Agreement, will be duly and validly authorized and issuedsubject to applicable bankruptcy, fully-paid and non assessable and will not subject insolvency, reorganization, moratorium laws or similar laws or equitable principles generally affecting or limiting the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a contracting party;
(iv) This Agreement has been duly authorizedSeller is the owner and holder of the entire legal and beneficial interest in the Loan, validly executed the Note, and delivered on behalf of SELLER other Loan Documents, and is a valid and binding agreement of SELLER in accordance with transferring its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained interest in the Registration Rights Agreement may be limited by applicable lawsLoan, the Note and the other Loan Documents free and clear of any and all liens, pledges, charges or security interests of any nature.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result loan files made available to Purchaser for its due diligence review included all Loan Documents and, except as reflected in a breach by SELLER of any of the terms or provisions of, or constitute a default undersaid loan files, the certificate of incorporation (Loan has not been amended or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;modified.
(vi) No authorization, approval or consent of or filing with Seller has not released any federal, state or local governmental body of the United States is legally required collateral for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;Loan.
(vii) To Maker has made all payments owing on the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERLoan when due.
(viii) SELLER will issue one or more certificates representing During the Debentures twenty-four (24) month period prior to the Effective Date, Maker has not been in default under the terms of the Loan Documents.
(ix) Except as disclosed in the name of BUYER Loan Documents, the Loan is not secured by the same property as any other commercial loan held by Seller.
(x) The Final Payoff Statement is true and correct in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion all material respects, as of the Debentures. SELLER further warrants that Closing Date.
(xi) To Seller’s Knowledge, neither Maker nor Seller has committed fraud, solely with respect to the Debentures Loan Documents.
(xii) Seller does not have any other loans or commitments to loan money to Maker, and Maker does not guaranty any other loans owing to Seller.
(xiii) The sale, assignment and transfer of the Loan to Purchaser will be free of any participation interest.
(xiv) The payment history and the Shares shall be transferable on the books and records of SELLER as and rate at which interest is being paid relating to the extent provided Loan are true and correct in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesmaterial respects.
Appears in 1 contract
Seller’s Representations. SELLER (a) Seller represents and warrants to Purchaser, as follows:
(ib) SELLER has not conducted any general solicitation or general advertising (as defined Seller is duly organized and validly existing corporation in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;State of Delaware.
(iic) Seller is duly and legally authorized by all requisite corporate action to enter into this Agreement and to sell, transfer and convey the Premises.
(d) The Debenturesperson executing this Agreement on behalf of Seller is a duly authorized representative of Seller and has full power and authority to execute this Agreement on behalf of Seller. Seller has all requisite power and authority to sell the Premises to Purchaser and to execute this Agreement and the other documents and instruments contemplated hereby; and to the best of Seller's knowledge, except as provided in this Agreement, the performance of Seller's duties hereunder or thereunder do not require Seller to obtain any authorizations, consents or approvals, licenses, exemptions from or filings or registrations with any person, entity, court, executive or legislative body, governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which have not been obtained by Seller or otherwise waived.
(e) This Agreement, when issued duly executed and delivered pursuant to delivered, will be the legal, valid and binding obligation of Seller, enforceable in accordance with the terms of this Agreement, will have been duly authorized, executed, issued . Seller's performance of its duties and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of under this Agreement and the consummation of the transactions transfer documents contemplated by this Agreement do not and hereby will not conflict with with, or result in a breach by SELLER of or default under, any provision of any of the terms Seller's organizational documents any agreements, instruments, decrees, judgments, injunctions, orders, writs, laws, rules or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERregulations, or any indenturedetermination or award of any court or arbitrator, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it or any of its properties or assets are or may be bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiif) SELLER will issue one or more certificates representing Attached hereto as Schedule B is a Schedule of all leases (and all subleases entered into by any tenants under the Debentures in leases of which Seller has actual knowledge) of space at the name of BUYER in such denominations (in multiples of $25,000) Premises, and all other occupancy agreements with respect to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion any portion of the Debentures. SELLER further warrants that Premises of which Seller has actual knowledge (hereinafter collectively called the Debentures and the Shares shall be transferable "Leases") on the books date of this Agreement.
(g) Attached hereto as Schedule C is a list of all service contracts, equipment leases, maintenance contracts, supply contracts, management agreements and records other material agreements (hereinafter collectively called the "Contracts") which pertain to or affect the Premises or any part thereof on the date of SELLER as this Agreement.
(h) There are and shall at the Closing be no employees, and no employment agreements or contracts or union agreements or contracts, oral or written, which pertain to or affect the Premises or any part thereof
(i) There are no actions, suits or proceedings currently pending or, to Seller's actual knowledge, threatened, which if successful would adversely affect Purchaser's right, title and interest in and to the Premises.
(j) Seller has received no written notice of any violation of any law with respect to the Premises which remains uncured on the date of this Agreement.
(k) Seller has received no written notice of any pending or threatened condemnation or eminent domain proceeding with respect to the Premises or any part thereof
(l) Seller has received no written notice of any actual or proposed assessments or special assessments against the Premises, other than annual real estate taxes.
(m) With respect to any representations or warranties of Seller contained in this Agreement that are qualified to the extent of Seller's "knowledge" or words of like meaning, "knowledge" shall mean the actual knowledge of Xx. Xxxxxx Xxxxxx, a Director of Xxxxx Xxxx Xxxxxxx USA.
(n) Notwithstanding anything to the contrary contained herein or in any of the closing documents, Seller shall not be liable for, and Purchaser shall not be entitled to exercise any right or remedy or to assert any claim against Seller with respect to, any breach of any representation or warranty made by Seller herein with respect to any Lease if and to the extent provided Seller delivers an estoppel certificate from the tenant under the Lease expressly affirming such representation or warranty; and in the Transaction Documents, subject such event such representation or warranty shall be deemed not to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitieshave been made by Seller.
Appears in 1 contract
Samples: Lease Agreement (Nexmed Inc)
Seller’s Representations. SELLER Seller represents and warrants as followsto and with Purchaser that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is a corporation duly organized, validly existing, and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;State of Delaware and Seller is duly qualified to carry on its business in the state in which the Assets are located.
(iib) The DebenturesSeller has all requisite power and authority to carry on its business as presently conducted, when issued and delivered pursuant to the terms of enter into this Agreement, will have been duly authorizedto sell the Assets on the terms described in this Agreement, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsperform its obligations hereunder.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(viic) To the best of the CompanySeller's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997knowledge, there has been are no material adverse development actions, suits, proceedings or agency enforcement actions pending against the Assets other than those listed in the business, properties, operations, financial condition or results of operations of SELLERExhibit "A".
(viiid) SELLER Seller will issue one protect, defend and indemnify Purchaser from and against, any liability or more certificates representing expense as a result of any undertakings or agreements of Seller for brokerage fees, finder's fees, agent's commissions or other similar forms of compensation in connection with this Agreement or any agreement or transaction contemplated hereby.
(e) If any mortgage, deed of trust, or similar lien created by Seller exists with respect to the Debentures in the name Assets, Seller will obtain and file of BUYER in such denominations record a release of same.
(in multiples of $25,000f) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion The assignment of the DebenturesAssets from Seller to Purchaser shall be without warranty of title, either express or implied, and shall be subject to all validly existing encumbrances, other than those referred to in sub-article V(e) above, which pertain to the Leases or other assets.
(g) THE EXPRESS REPRESENTATIONS OF SELLER CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER REPRESENTATIONS OR WARRANTIES. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of EXPRESSLY DISCLAIMS AND NEGATES AND PURCHASER HEREBY WAIVES, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, QUANTITY OR VOLUME OF RESERVES, OIL, GAS OR OTHER HYDROCARBONS, IF ANY, IN OR UNDER THE LEASES; THE ENVIRONMENTAL CONDITION, EITHER SURFACE OR SUBSURFACE, OR OTHER CONDITION OF THE ASSETS; OR THE OWNERSHIP OR OPERATION OF THE ASSETS OR ANY PART THEREOF. SELLER as and to the extent provided in the Transaction DocumentsDOES NOT MAKE OR PROVIDE, subject to compliance with Federal and State securities lawsAND PURCHASER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE ASSETS OR ANY PART THEREOF. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesSELLER DISCLAIMS AND NEGATES, AND PURCHASER HEREBY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. THE PERSONAL PROPERTY, EQUIPMENT, IMPROVEMENTS, FIXTURES AND APPURTENANCES CONVEYED AS PART OF THE ASSETS ARE SOLD AND PURCHASER ACCEPTS SAME "AS IS, WITH ALL FAULTS".
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cotton Valley Resources Corp)
Seller’s Representations. SELLER Seller represents and warrants that as followsof the date hereof:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is, and at the Closing shall be, a limited liability company formed under the laws of the Securities offered hereby;
(ii) The DebenturesState of Delaware. Seller has the right, when issued power and delivered pursuant authority to make and perform its obligations under this Contract without the terms of this Agreementneed for governmental approval, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now consent or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsfiling.
(iiib) The Sharesexecution, when issued delivery and delivered upon conversion performance of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER this Contract in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER violate the limited liability company agreement of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERSeller, or any indenturecontract, mortgageagreement, deed of trust commitment, order, judgment or other material agreement or instrument decree to which SELLER Seller is a party or by which it or any of its properties or assets are is bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;.
(vic) No authorizationSeller has the right, approval or consent power and authority to make and perform its obligations under this Contract.
(d) This Contract is a valid and binding obligation of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller enforceable against Seller in accordance with their its terms.
(e) Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as contemplated by this Agreementamended.
(f) The tenants listed on Schedule C annexed hereto are tenants under leases (such leases are herein called the “Existing Space Leases” and the lessees thereunder are herein called the “Existing Space Tenants”), true, correct and complete copies of which have been delivered or made available to Purchaser, constitute the only leases, licenses or other written agreements for the use or occupancy of the Premises to which Seller is a party and which will be binding on Purchaser following the Closing, except as may otherwise be set forth in the filing Permitted Exceptions. Except as may be set forth in Schedule C annexed hereto, the Existing Space Leases are in full force and effect.
(g) The information on the rent roll attached hereto as Schedule C is true and correct in all material respects.
(h) The 2005 and 2006 year-to-date operating statements for the Property attached hereto as Schedule F were prepared in the normal course of business.
(i) Except as may be set forth in its Space Lease, no Existing Space Tenant has made payments to Seller in advance for more than one (1) month (exclusive of security deposits).
(j) Set forth on Schedule D is a true, correct and complete list of the service contracts (the “Service Contracts”) which may be binding on Purchaser or the Property after the Closing. Seller does not guarantee or undertake that any of the Service Contracts will be in effect as of the Closing. Seller reserves the right to modify, terminate or enter into new Service Contracts prior to Closing provided such new service contracts are terminable on not more than thirty (30) days prior notice without payment of any premium or penalty (unless Seller agrees to pay the premium or penalty). Notwithstanding anything contained herein to the contrary, Purchaser shall notify Seller in writing prior to the expiration of Purchaser’s Review Period which, if any, of the Service Contracts Purchaser does not wish to assume at Closing and Seller shall terminate, prior to the Closing Date, those Service Contracts specified in Purchaser’s notice, except Seller shall have no obligation to terminate, and Purchaser hereby agrees to accept and assume in accordance with Exhibit 3 all Service Contracts (including those specified in Purchaser’s notice) which cannot be terminated by Seller (i) without cause, (ii) upon less than thirty (30) days’ notice, or (iii) without payment of a Form D premium or penalty. Purchaser’s failure to timely deliver notice pursuant to the preceding sentence shall be deemed Purchaser’s election to accept and assume all of the Service Contracts in accordance with Exhibit 3.
(k) There are no persons employed by Seller at the Premises in connection with the Commission;operation or maintenance of the Premises who will be binding upon Purchaser after the Closing.
(viil) To the best of the Company's knowledge after reasonable investigation, the information contained Except as set forth on Schedule C or in the Company's Annual Report tenant files delivered or made available to Purchaser, Seller has not sent to or received a written notice of default from a Space Tenant under the Space Leases in the past six (6) months which has not been cured or waived.
(m) There is no pending or overtly threatened condemnation proceeding against the Premises or any portion thereof.
(n) Except as set forth on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinSchedule E annexed hereto, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997tenant files delivered or made available to Purchaser or for matters fully covered (excluding deductibles) by one or more insurance policies, there has been is no material adverse development in litigation pending against the business, properties, operations, financial condition or results of operations of SELLERPremises.
(viiio) SELLER will issue one or No Major Tenant (i) is in default of their monthly base rent payments for more certificates representing the Debentures than sixty (60) consecutive days, (ii) has commenced a pending action for bankruptcy, (iii) has given notice in the name prior twelve (12) months that it will abandon its entire demised premises or (iv) has abandoned its entire demised premises. If Purchaser has not terminated this Agreement pursuant to Section 12.1 herein, then following the waiver of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one Purchaser’s Review Period or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion expiration of the Debentures. SELLER further warrants that the Debentures and the Shares Outside Termination Date, this representation shall be transferable on deemed stricken from the books Agreement and records of SELLER as and Purchaser shall have no rights against Seller or with respect to the extent provided this Agreement in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesconnection thereto.
Appears in 1 contract
Seller’s Representations. SELLER represents Subject to Sections 21 and warrants 22 below, Seller hereby covenants, as followsof the date hereof and at the time of the closing, the following, each of which shall constitute and be determined as a condition of this Agreement:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is the Owner of the Securities offered hereby;
(ii) The Debenturespremises, when issued and delivered pursuant the party executing this agreement is and shall be duly authorized to enter in this Agreement and bind their entity to the terms of this Agreement, will the same and shall have been duly authorized, executed, issued approved such sale and waived any rights relating thereto and at the time of closing written evidence of such authority and power shall be presented and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(iiib) The SharesSeller represents and warrants that the premises shall be free and clear of leases and tenancies; provided, when issued and delivered upon conversion however, that Buyer acknowledges that Seller has disclosed to Buyer that there are existing minor encroachments by various abutters to the Premises that were disclosed by Buyer’s survey of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect Premises conducted prior to the Shares contained in SELLER'S Certificate date of Incorporation this Agreement. Seller shall have no obligation to remove or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsotherwise cure such encroachments.
(vc) The execution Seller has no knowledge or knows of any circumstances, transactions or occurrences which would give rise to any liabilities, contingent or otherwise, relating to the premises that would be imposed on Buyer by third person(s), except as set forth in documents recorded in the chain of title to the premises, the Sewage Betterment Assessment described in Section 14 above, or as specifically stated herein, including all local, state and federal permits and approvals, a certificate on the Buyer’s Final Environmental Impact Report for MEPA Project No. 14592 and approvals to provide municipal sewer service connections to the Premises necessary to develop the Premises.
(d) Seller shall notify any and all such contractors at request of Buyer to cease any further delivery of this Agreement supplies or performance of services except on the written direction of Buyer, so Buyer shall have no responsibility for continuing services. Buyer shall have the option of maintaining or assuming such contracts but shall have no obligation to do so.
(e) Except for the Sewage Betterment Assessment as described in Section 14 above, the property and all assets are free from any and all liens or encumbrances and there are not any actions pending or contemplated which would render the consummation Buyer subject to any liability, or cause the Buyer to lose possession of the transactions contemplated same due to seizure or forfeiture by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission bureau, department or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;agency.
(viif) To the best of Seller’s knowledge there are no underground storage tanks on the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERpremises.
(viiig) SELLER will issue one Seller has never stored oil or more certificates representing any hazardous substances on the Debentures premises other than in the name ordinary cause of BUYER business and in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to full compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale laws, and that it has never disposed of any oil or hazardous substances on the premises and that Seller is not aware of the Securitiesgeneration, storage or disposal of such substances on the premises by anyone else. For purposes of this paragraph, “hazardous substances” shall be defined as set forth in the Comprehensive Environmental Response and Compensation Liability Act of 1980, as amended, 42 USC §9601, et seq. and regulations promulgated thereunder.
(h) The premises are not served by a subsurface sewerage disposal system.
(i) The Seller’s filing of a certificate of dissolution as referenced in Paragraph 22 herein shall not prevent Seller from performing the sale of the Premises on the terms and on the dates described herein.
(j) The Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sycamore Networks Inc)
Seller’s Representations. SELLER Seller represents and warrants to Purchaser as followsof the Agreement Date that:
(ia) SELLER Seller is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization; is duly qualified to do business in and is in good standing in every jurisdiction where Seller is operating its business; and has all powers and all governmental licenses, authorizations, consents, and approvals required to carry on its business as now conducted.
(b) Seller is the sole legal and beneficial owner of and has good title to the Litigation, the Proceeds, and the Transferred Rights, free and clear of any Encumbrance (except for the Encumbrance in favor of TCA Global Credit Master Fund, LP).
(c) There are no suits, investigations, or proceedings pending, or to the knowledge of Seller, threatened, against Seller that may adversely affect it, the Litigation, the Proceeds, the Transferred Rights, or its other assets.
(d) Seller has not conducted received any general solicitation payments or general advertising (as defined other distributions in Regulation D) connection with the Litigation. Any payments to be made to Seller with respect to the Litigation or the Proceeds are not subject to any rights of subordination or setoff.
(e) Seller has provided to Purchaser true, correct, and complete copies of (i) all material documents and other information relating to the Securities offered hereby;
Litigation that are necessary for Purchaser to sufficiently and effectively evaluate the merits of, the likelihood that Seller will prevail in, the level of damages to be awarded in, and the likelihood of Seller to collect from, the Litigation; and (ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive financial statements and other forms documents of equitable relief may be subject to equitable defenses Seller as filed with the Securities and to the discretion of the court before which any proceedings therefor may be brought Exchange Commission; provided, however, that Seller has not provided such documents and (C) information to the extent that the indemnification provisions contained such disclosure would result in the Registration Rights Agreement may loss of protection under the attorney-client privilege (“Excluded Information”). Even without the Excluded Information, Seller has provided Purchaser with sufficient information to evaluate the merits of, the likelihood that Seller will prevail in, the level of damages to be limited by applicable laws.
(iii) The Sharesawarded in, when issued and delivered upon conversion of the Debentures in accordance with their termslikelihood to collect from, the Litigation. Seller reasonably believes that Seller will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained prevail in the Registration Rights Agreement may be limited by applicable laws.
(v) Litigation. The execution documents and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement information delivered to Purchaser 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement by Seller of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, made therein not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiif) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) Before and after giving effect to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject Seller is solvent and has the economic capability to compliance with Federal perform its obligations under the Transaction Documents.
(g) (i) Seller has no Indebtedness outstanding or (ii) (A) Seller has disclosed the material terms of such Indebtedness in writing to Purchaser, (B) Seller is not in default under the documents governing such Indebtedness, and State securities laws. Nothing (C) such Indebtedness is not secured by the Collateral (except for the Encumbrance in this Section shall affect in favor of TCA Global Credit Master Fund, LP).
(h) Except for the Transaction Documents, Seller has not entered into any way BUYER'S obligations and agreement assignment, financing, or other investment arrangement relating to comply with all applicable securities laws upon resale the Litigation, the Proceeds, or the Transferred Rights.
(i) Seller has sole control of the SecuritiesLitigation and any settlement decisions related thereto and will not delegate such control to any Entity.
(j) Purchaser has not provided Seller with any legal, tax, or investment advice regarding selling the Transferred Rights or entering into the Transaction Documents. Seller is capable of evaluating and understanding the terms, risks, and conditions of the transactions contemplated by the Transaction Documents.
(k) Seller brought and continues to pursue the Litigation in the exercise of its independent judgment in consultation with its counsel. Purchaser has not prompted or encouraged initiation of any Litigation, and, regardless of the existence of this Agreement, Seller would have brought and would continue to pursue the Litigation.
Appears in 1 contract
Samples: Prepaid Forward Purchase Agreement (Rennova Health, Inc.)
Seller’s Representations. SELLER (a) Seller represents and warrants to Buyer that as followsof the date hereof and, except as provided below, as of the Closing Date:
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is a corporation duly organized and validly existing under and by virtue of the Securities offered herebylaws of the State of Delaware and is duly authorized to do business in the State of New York;
(ii) The Debentures, when issued Seller has full power and delivered pursuant authority to consummate the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations sale of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holdersProperty as contemplated hereby. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement by Seller has been duly authorized, constitutes a legal, valid and the consummation binding obligation of the transactions contemplated by this Agreement do Seller, and does not and will not conflict with or result in a breach by SELLER violate any provisions of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument judicial order to which SELLER Seller is a party or to which Seller is subject. All documents executed by Seller which it are to be delivered to Buyer at the Closing will be duly authorized, executed and delivered by Seller and will not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller is subject;
(iii) Seller has not granted any right or option to acquire any interest in the Property to any other party;
(iv) Seller has not entered into any leases or granted any rights of occupancy or all or any part of its properties or assets are bound, or any existing applicable decree, judgment or order the Property except as shown on Exhibit "D" hereto and the Property shall be delivered vacant and free of any courtleases, federal subleases, license agreements or state regulatory body, administrative agency or occupants other governmental body having jurisdiction over SELLER or any than as provided for under the Lease and as shown on Exhibit "D";
(v) Seller is not a foreign person within the meaning of its properties or assetsSection 1445 of the Internal Revenue Code and will deliver to Buyer an affidavit to that effect at Closing as required pursuant to Section 1445 of the Internal Revenue Code;
(vi) No authorizationSeller has received no written notice of any pending litigation with respect to the Property based upon Seller's acts, approval or consent of or filing with any federal, state or local governmental body of which would impair Seller's ability to convey the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by Property to Buyer pursuant to this Agreement, except the filing of a Form D with the Commission;; and
(vii) To the best As of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997date hereof only, there has been are no material adverse development in pending or threatened (by written notice to Seller) condemnation proceedings affecting the business, properties, operations, financial condition Property or results of operations of SELLERany part thereof.
(viii) SELLER As of the date hereof, there are no proceedings pending to obtain a reduction in real estate taxes applicable to the Property.
(ix) Seller shall keep the Property insured against casualty prior to the Closing in an amount of not less than $29,000,000 (which insurance policy is sometimes referred to herein as the "Casualty Insurance Policy").
(x) At Closing there will issue one be no service agreements or more certificates representing the Debentures other contracts which Buyer will be obligated to assume or pay for nor shall Buyer be obligated to hire or pay any termination benefits for any employee of Seller involved in the name operation or maintenance of BUYER the Property.
(xi) Seller has no knowledge of any Environmental Claims (as defined in Article IV) (a) against Seller in respect of the Property, or (b) concerning the Property.
(xii) At Closing there shall be no litigation pending against Seller or the Property which would have a material impact upon Buyer or the Property after the Closing. If any representation or warranty made by Seller pursuant to this Paragraph 2.2(a), other than the representation in subsection (vi) (provided Buyer's title insurance company omits any exception with respect to such litigation) is not true in any material way, then in such denominations (in multiples of $25,000) event Buyer's sole and exclusive remedy shall be to be specified cancel this Agreement by BUYER giving notice to Seller prior to closing the Closing, and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares this Agreement shall be transferable on deemed terminated as of such delivery, in which event the books and records of SELLER as and Deposit, together with interest earned thereon shall be returned to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesBuyer.
Appears in 1 contract
Samples: Purchase Agreement (Edo Corp)
Seller’s Representations. SELLER represents The matters set forth in this Section 17(a) constitute representations and warrants warranties by Seller (collectively, “Seller’s Representations”) which are now and (subject to Section 9(a) and the provisions of this Section 17(a)) shall, in all material respects, at Closing be true and correct. If at any time prior to Closing, Seller learns, or has a reason to believe, that any of the representation set forth in this Section 17(a) may cease to be true and correct, then Seller shall give written notice to Buyer within three (3) days thereof (an “Update Notice”) (which notice shall include copies of the instrument, correspondence or document, if any, in Seller’s possession upon which Seller’s notice is based). If (x) Buyer otherwise obtains knowledge, and provides written notice to Seller, that any of Seller’s Representations cease to be true and correct in all material respects, then Buyer shall provide Seller written notice of such alleged fact or circumstance and any objection of Buyer with respect thereto within three (3) days of Buyer’s receipt of it obtaining knowledge thereof, and/or (y) Seller delivers an Update Notice and Buyer has an objection to the content of such Update Notice, then Buyer shall deliver notice of its objection within three (3) days of Buyer’s receipt of such Update Notice (in each case under subclause (x) or (y), a “R&W Objection Notice”). If Seller has not remedied such fact or circumstance or cured Buyer’s objection within ten (10) days of delivery of receipt of such R&W Objection Notice (provided that, Seller shall be afforded up to thirty (30) days to remedy any fact or circumstance or cure any objection that cannot reasonably be remedied within such ten (10) day period, so long as follows:
Seller shall have commenced such remedy or cure action within such ten (10) day period and thereafter diligently pursues the same, and the Closing Date may be extended in order to allow Seller such time periods), then Buyer may promptly terminate this Agreement by written notice to Seller, in which event the Xxxxxxx Money shall be immediately refunded to Buyer, all rights and obligations of the parties under this Agreement shall cease and terminate without any further liability of either party to the other (except for those that expressly survive termination as provided in this Agreement) and this Agreement shall become null and void. Notwithstanding anything to the contrary contained herein, (i) SELLER has Seller shall have the right to modify Seller’s Representations to reflect any change in circumstances first arising after the Effective Date and not conducted occurring as a result of a breach of this Agreement by Seller or any general solicitation act or general advertising (omission of Seller, so long as defined in Regulation D) Seller shall have provided an Update Notice to Buyer with respect thereto in accordance with this Section 17 (and, for the avoidance of doubt, Buyer may object to any of the Securities offered hereby;
such change in circumstances by providing a R&W Objection Notice in response thereto), (ii) The Debentures, when issued and delivered if Buyer elects not to terminate this Agreement pursuant to the terms of this Agreementforegoing provision, will then Buyer shall be deemed to have been duly authorized, executed, issued waived such condition and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject elected to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now proceed to Closing without any abatement or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained reduction in the Registration Rights Agreement may Purchase Price on account of such R&W Objection Notice and Buyer shall not be limited permitted to make a claim following Closing for a breach by applicable laws.
Seller of such representation or warranty, and (iii) The Shares, when issued and delivered upon conversion if Buyer has actual knowledge of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights a breach of any shareholder of SELLER representation or warranty made by Seller in this Agreement or any condition/matter with respect to the Shares contained in SELLER'S Certificate Property prior to Closing and Buyer nevertheless elects to close the transaction described herein, such representation or warranty by Seller shall be deemed to have been modified to reflect the information of Incorporation or any agreement which Buyer has actual knowledge and Buyer shall not be permitted to which SELLER is make a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in claim following Closing for a breach by SELLER Seller of such representation or warranty. Without limiting the generality of the foregoing, Buyer shall be deemed to have actual knowledge of the Due Diligence Materials. For the avoidance of doubt, if any of Seller’s Representations shall cease to be true and correct as the result of any default or breach by Seller hereunder, then Buyer shall have all of its rights and remedies hereunder. Seller represents and warrants to Seller as follows as of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.Effective Date:
Appears in 1 contract
Samples: Purchase and Sale Agreement (J.P. Morgan Real Estate Income Trust, Inc.)
Seller’s Representations. SELLER Except as disclosed to or known by Buyer prior to the satisfaction or waiver of the feasibility contingency stated in Section 5 above, including in the books, records and documents made available to Buyer, or in the title report or any supplemental report or documents referenced therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the following is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, to sell the Property, and warrants to perform its obligations under the Agreement; (b) The books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement comprise all material documents in Seller's possession or control regarding the operation and condition of the Property; (c) Seller has not received any written notices that the Property or the business conducted thereon violate any applicable laws, regulations, codes and ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental consents necessary to own and operate the Property for its current use; (e) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after Closing; (f) There is no pending or threatened condemnation or similar proceedings affecting the Property, and the Property is not within the boundaries of any planned or authorized local improvement district; (g) Seller has paid (except to the extent prorated at Closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 8 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after Closing; (h) Seller is not aware of any concealed material defects in the Property except as follows:
disclosed to Buyer in writing during the Feasibility Period; (i) SELLER has not conducted any general solicitation or general advertising There are no Hazardous Substances (as defined below) currently located in, on, or under the Property in Regulation D) with respect a manner or quantity that presently violates any Environmental Law (as defined below); there are no underground storage tanks located on the Property; and there is no pending or threatened investigation or INITIALS: BUYER DATE: SELLER DATE: BUYER DATE: SELLER DATE: remedial action by any governmental agency regarding the release of Hazardous Substances or the violation of Environmental Law at the Property. As used herein, the term "Hazardous Substances" shall mean any substance or material now or hereafter defined or regulated as a hazardous substance, hazardous waste, toxic substance, pollutant, or contaminant under any federal, state, or local law, regulation, or ordinance governing any substance that could cause actual or suspected harm to human health or the environment ("Environmental Law"). The term "Hazardous Substances" specifically includes, but is not limited to, petroleum, petroleum by-products, and asbestos. If prior to Closing Seller or Xxxxx discovers any information which would cause any of the Securities offered hereby;
representations above to be false if the same were deemed made as of the date of such discovery, then the party discovering the same shall promptly notify the other party in writing. If the newly-discovered information will result in costs or liability to Buyer in excess of the lesser of $100,000 or five percent (ii5%) The Debentures, when issued and delivered pursuant to of the terms of purchase price stated in this Agreement, or will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations materially adversely affect Buyer's intended use of the Company in accordance with their termsProperty, subject then Buyer shall have the right to terminate the Agreement and receive a refund of its xxxxxxx money. Buyer shall give notice of termination within five (A5) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now days of discovering or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion receiving written notice of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities lawsnew information. Nothing in this Section paragraph shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale prevent Buyer from pursuing its remedies against Seller if Seller had actual knowledge of the Securitiesnewly-discovered information such that a representation provided for above was false.
Appears in 1 contract
Samples: Purchase Agreement
Seller’s Representations. SELLER Each Seller severally represents and warrants to Purchaser, with respect only to itself and its Property, the following (collectively, for all of the Sellers, the “Sellers’ Representations”) as followsof the Effective Date, and, as of the Closing, provided, however, notwithstanding anything contained herein to the contrary, that following the Closing, Purchaser’s remedies in the instance that any of Sellers’ Representations are untrue, are limited to those set forth in Section 15.13 below:
(a) Each Seller is organized, validly existing and in good standing under the laws of the jurisdiction of its formation.
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to Each Seller, acting through any of its duly empowered and authorized officers or members, has or at the Securities offered hereby;
Closing will have the full power and authority to enter into this Agreement, to execute and deliver the documents and instruments required of such Seller herein, and to perform its obligations hereunder, and (ii) The Debenturessubject to obtaining the MacArthur Ground Lessor Consent, when issued the execution, delivery and delivered pursuant to compliance with or fulfillment of the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and conditions hereof will not conflict with with, or result in a breach by SELLER of any of the terms terms, conditions or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER such Seller is a party or by which it such Seller or its Property is otherwise bound.
(c) Subject to and except with respect to the applicable Loan Assumption Approvals and Defeasance of the Defeased Mortgage Loans, and subject to obtaining the MacArthur Ground Lessor Consent, each Seller has all necessary approvals to execute and deliver this Agreement and perform its obligations hereunder, and no other authorization or approvals of governmental bodies or any of its properties other Person or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact entity will be necessary in order to make enable such Seller to enter into or comply with the statements therein, in the light terms of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERthis Agreement.
(viiid) SELLER This Agreement and the other documents to be executed by each Seller hereunder, upon execution and delivery thereof by such Seller, will issue one have been duly entered into by such Seller, and will constitute legal, valid and binding obligations of such Seller.
(e) There are no leases, licenses, occupancy agreements or more certificates representing tenancies for any space at the Debentures Properties other than subleases entered into by tenants which Sellers are not aware of and those on Schedule 12.1(e), as such Schedule may hereafter be modified in accordance with Section 9.4(c) hereof. Each Seller has made available to Purchaser true, complete and correct copies of the Leases set forth on such Schedule 12.1(e) with respect to its Shopping Center. Each such Lease (i) constitutes the entire agreement between such Seller and the tenant thereunder, (ii) is in full force and effect, and (iii) has not been amended, supplemented or otherwise modified except by any amendment, supplement or modification thereto set forth on Schedule 12.1(e).
(f) Schedule 12.1(f) contains a true, complete and correct list of rent rolls for each of the Shopping Centers as of the date shown thereon (each, a “Rent Roll” and collectively, the “Rent Rolls”) which indicate the amount of fixed rent payable for the then current month, and other matters shown thereon, it being acknowledged by Purchaser that such rent and other matters shown thereon may change in accordance with each tenant’s Lease. Each Rent Roll shall be updated as set forth in Section 4.1(c)(xiv).
(g) Schedule 12.1(g) contains true, complete and correct lists, as of the Effective Date (to be updated by each Seller as of the Closing), of (x) the Security Deposits (whether in the name form of BUYER cash, letter of credit or otherwise) under the Leases being held by each Seller, including whether any such Security Deposit is being held in such denominations the form of a letter of credit, and (in multiples of $25,000y) the prepaid rents under the Leases with respect to be specified by BUYER prior to closing and will issue one its Shopping Center or more certificates representing credits which reduce future rents. Each Seller has complied with the Shares in such denominations to be specified by Buyer upon conversion terms of the Debentures. SELLER further warrants that Leases and all applicable laws regarding the Debentures handling and the Shares shall be transferable on the books and records application of SELLER as and such Security Deposits.
(h) No pending or, to the extent provided Knowledge of Sellers, threatened in writing litigation involving Sellers exists which if determined adversely would restrain the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale consummation of the Securitiestransactions contemplated by this Agreement or would declare illegal, invalid or non-binding any of Sellers’ obligations or covenants to Purchaser.
(i) Except as set forth on Schedule 12.1(i), (i) no Seller has delivered written notice to any tenants of any tenant default, or received written notices alleging any landlord default under Leases that remain uncured and (ii) no Seller has received a written notice from a tenant under a Lease that such tenant has an offset, counterclaim, or defense to its obligation to pay rent in accordance with the terms of such Lease after the Effective Date.
Appears in 1 contract
Seller’s Representations. SELLER represents As an inducement to enter this Agreement and as inducement for each future funding, and with the full knowledge that the truth and accuracy of the warranties in this Agreement are being relied upon by Purchaser instead of a complete credit investigation, the Seller represents, warrants and covenants as follows:
(a) contemporaneously with the purchase of accounts pursuant to this Agreement, Seller will execute a schedule of accounts, in a form approved by Purchaser, vesting in Purchaser all the Seller's right, title and interest in and to said accounts, with any securities or guaranties thereon, and in and to the property evidenced thereby, including the right of stoppage in transit; (b) Seller will make proper entries upon its books, disclosing the absolute sale of accounts to Purchaser; (c) every account will be bona fide, will be a certain undisputed claim for the amount set forth in the schedule of accounts, will represent a sale and delivery of personal property sold and/or work or labor done by Seller, will not be subject to any dispute, objection, setoff or counterclaim, and will not be contingent upon the fulfillment of any contract or condition whatsoever, and Purchaser may verify all such accounts or any portion thereof; (d) every debtor named in each account will be solvent, and will remain so until the maturity thereof, and each account will be paid in full on or before the date shown on its due date on the schedule of accounts, and if not so paid Seller will upon demand promptly pay any amount represented to be owing thereon to Purchaser; (e) if any debtor objects to the quality or quantity of property sold or work and/or labor done by Seller, or rejects, returns, or fails or refuses to accept or receive any property represented by any account, or if any such property is rerouted or reconsigned, then the Seller will forthwith pay to Purchaser the amount represented to be owing on such account, and in the case of any property returned to Seller, Seller will hold such property in trust for Purchaser and subject to its order, until payment is made therefor by Seller to Purchaser; (f) if any allowance or credit on any account is given by Seller, then Seller shall pay the amount thereof immediately to Purchaser; (g) Seller, upon demand, will open all mail only in the presence of a representative of Purchaser, who may take therefrom any remittances on accounts sold to Seller; (h) Purchaser may indorse the name of Seller upon any such remittances, if payable to Seller, and may sign and indorse the name of Seller on any invoice, freight bill, bill of lading, storage receipt, warehouse receipt, or any oxxxx ixxxxument or document in respect of any account, and may sign the name of Seller on any notices Purchaser may give to debtors; (i) SELLER has Purchaser may, from time to time, enter Seller's premises to inspect, check, make copies of or extracts from the books, accounts, orders and original correspondence relating to accounts, and Seller will made available its books, records, and files to Purchaser at any time for such purposes; (j) Purchaser may hold for purchase or as security any accounts, property, securities, guaranties or monies of Seller which may at any time be assigned to, be delivered to, or come into the possession of Purchaser, and may apply these or the proceeds thereof to the payment of any amounts which at any time then or thereafter are or might be owing to Purchaser by Seller; (k) Seller will not conducted sell, grant a security interest in, or assign any of its accounts elsewhere without giving 30 days' written notice to Purchaser of its intention to do so; (l) if any debtor suspends business, requests a general solicitation extension of time within which to pay its debts, or general advertising makes an assignment for the benefit of creditors, or if a petition in bankruptcy, or in equity for receivership, or for reorganization under the Bankruptcy Act or any amendment thereof is filed by or against any debtor, or a creditors' committee is named for any debtor, or in the event of the occurrence of any act whatsoever amounting to a business failure by any debtor, then in such event, Seller will immediately pay to Purchaser the amount represented to be owing by such debtor on any account; (as defined in Regulation Dm) with respect if Seller fails to perform promptly or violates any of the Securities offered hereby;
promises or obligations herein contained, then Seller shall pay Purchaser all attorney's fees, court costs, and all other expenses which may be expended or incurred by Purchaser to obtain or enforce payment of any account, either against the debtor, Seller, or any guarantors, or expended or incurred in the prosecution of any action against Seller or any guarantors concerning any matter growing out of or connected with the subject matter of this Agreement and accounts purchased herein; (iin) The DebenturesSeller will execute and deliver to Purchaser any and all instruments or documents, when issued and delivered pursuant do any and all things, necessary or convenient to carry into effect the provisions of this Agreement, and to facilitate the collection of any accounts; and (o) Purchaser shall have the right to notify the U.S. Postal Service authorities to change the address for the delivery of mail addressed to Seller to such address as Purchaser may designate; (p) Seller and guarantor shall promptly report to Purchaser any change of address of their respective places of business or residence, and failure to do so shall constitute a default under the terms of this Agreement; (q) Seller's business is solvent; (r) Seller is, at the time of purchase by Purchaser, the lawful owner of and has good and undisputed title to the accounts purchased by Purchaser; (s) Seller does not own, control or exercise dominion over, in any way whatsoever, the business of any account/customer to be purchased by Purchaser; (t) all financial records, statement, books or other documents shown to Purchaser by Seller at any time, either before or after the signing of this Agreement are true and accurate; (u) Seller will have been duly authorizednot, executedunder any circumstances or in any manner whatsoever, issued and delivered and interfere with any of Purchaser's rights under this Agreement; (v) Seller will constitute valid and legally binding obligations not factor or sell accounts except to Purchaser for the period of this Agreement; (w) Seller will not change or modify the terms of the Company original account with customer unless Purchaser first consents to such change in accordance with their termswriting. For example, subject Seller may not extend credit to customer beyond thirty days without prior written consent from Purchaser; (Ax) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and Seller will maintain such insurance covering Seller's business and/or the property of Seller's customers as is customary for businesses similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion business of Seller and, at the request of Purchaser, name Purchaser as loss payee of such insurance; (y) Seller will immediately notify Purchaser of any proposed or actual change of Seller's name, location, identity, legal entity or corporate structure; (z) all of the court before which any proceedings therefor may be brought Collateral is owned by Seller alone, free and clear of all liens, claims, security interest(s) or encumbrances except those granted to Purchaser or those specifically disclosed in writing to Purchaser and accepted by Purchaser in writing; (Caa) to Seller has never previously billed for the extent that the indemnification provisions goods or services contained in the Registration Rights invoice(s) delivered to Purchaser for sale, and said invoice(s) are not duplicative in any part; (ab) Seller and Guarantor have full power and authority to enter this Agreement may be limited by applicable laws.
and Seller has authorized the sale of its accounts to Purchaser; (iiiac) The Shareseach account receivable is current and presently due to Seller and is for the amount stated in Schedule "A"; (ad) in event of Seller's default or breach of this Agreement, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights if Purchaser desires an audit (review of any shareholder or all of SELLER with respect Seller's financial records), Seller shall immediately pay Purchaser all reasonable expenses incident to the Shares contained in SELLER'S Certificate audit, whether done by a Certified Public Accountant or not; (ae) Seller has no outstanding tax liability to the United States of Incorporation America, any state or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now local or hereafter in effect relating to creditors' rights other taxing authority; and (Baf) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited upon execution by applicable laws.
(v) The execution and delivery Seller of this Agreement and the consummation filing of UCC-1 Financing Statements, Purchaser will then and for the duration of this Agreement have a valid and legally binding first lien on the Collateral of Seller. All of the transactions contemplated foregoing warranties and representations are material and Purchaser is relying on said representations and warranties in entering into this Security Agreement. Seller incorporates by reference, as though fully set forth, all of the representations, warranties, terms, covenants and conditions set forth in this Agreement do not and will not conflict with in each subsequent sale of accounts, funding, Schedule "A" or result in a breach by SELLER of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, "B" or any indentureother advance to Purchaser, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information whether expressly contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating any document surrounding such event or not. Seller agrees to the Annual Meeting of Shareholders held on June 26, 1997 notify Purchaser immediately if any representation or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any warranty is or becomes untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERinaccurate.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER represents A. The Seller makes the following representations and warrants as followswarranties:
(i) SELLER has not conducted any general solicitation or general advertising (as defined Seller owns fee simple title to the Property, subject to those title exceptions disclosed in Regulation D) with respect to any of the Securities offered herebysuch title insurance policy;
(ii) The Debenturesthis Agreement has been properly executed on behalf of Seller by its duly authorized officer and any and all actions, when issued which are or may be necessary to fully authorize Seller to enter into and delivered pursuant to the terms of perform this Agreement, will Agreement have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.properly obtained;
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do herein shall 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, by Seller of any other agreement to which Seller is a party;
(iv) Seller has not engaged any broker or agent with respect to the certificate purchase and sale contemplated under this Agreement and there are no leasing agreements or other agreements arising through Seller with any third parties concerning leasing of incorporation the Property; and
(v) there are no leases whose term (or charterany extension thereof) would extend beyond the Closing Date or by-laws give the right of SELLER, possession of the Property or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsportion thereof beyond the Closing Date;
(vi) No authorizationSeller has not received any notice from any governmental authority of any taking of the Property or any portion thereof by eminent domain and, approval to its knowledge, no condemnation or consent any taking of the Property is contemplated or filing with threatened by any such governmental authority;
(vii) to the best of Seller’s knowledge, without independent investigation, neither the Property nor any portion thereof is in violation of any federal, state or local governmental body law, ordinance or regulation relating to any Hazardous Substances and there exists no presence, use, treatment, storage, release or disposal of any Hazardous Substances at, on or beneath the Property which has created or is likely to create any liability (public or private) of owners or occupants of the United States Property under any current federal, state or local law or regulation or which would require reporting to a governmental agency. No Hazardous Substances are present at, on or beneath any parcel of property or property adjacent to the Property and no parcel or property adjacent to the Property is legally required in violation of any laws, ordinances, rules or regulations with respect to Hazardous Substances. As used herein, the term "Hazardous Substances" means petroleum, petroleum products, asbestos, asbestos containing materials, polychlorinated bi-phenyls ("PCBs") any other hazardous, toxic or dangerous substance, material, or waste as defined for the issuance and sale purposes of the Debentures Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9061 (provided no commission "CERCLA"); Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 ("HMTA"); the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ("RCRA"), and all amendments to the foregoing, or any other federal, state or local law, ordinance, rule or regulation applicable to the Property, and establishing liability, standards or required action as to discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal, removal, use or existence of a hazardous, toxic or dangerous substance, material or waste. No asbestos, asbestos containing materials or PCBs are contained in or stored on or under the Property. There has never been a landfill containing decomposable material, petroleum xxxxx, mineral-bearing mines, sewage treatment facilities, storage tanks, sink holes, radon or other remuneration is paid toxic emissions in, on or given directly or indirectly by SELLER for soliciting such conversion) under the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.Property; and
(viii) SELLER to the best of Seller's knowledge, there are no pending or threatened actions, suits, proceedings or bankruptcies against Seller of the Property which might affect the Property, Seller’s title thereto, or the ability of Seller to perform its obligations hereunder.
B. Seller take such steps as necessary to become active in good standing with eh the Georgia Secretary of State prior to the closing.
C. Seller will issue one not take, or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) cause to be specified by BUYER prior taken, any action, which would cause or threaten to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion cause, any of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and representations stated herein to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesbecome incorrect or untrue.
Appears in 1 contract
Samples: Real Estate Agreement
Seller’s Representations. SELLER Seller represents the following as of the date of this Agreement and warrants as followsof the Closing Date:
A. EXCEPT AS SET FORTH HEREIN AND IN THE CONVEYANCE DOCUMENTS: (i1) SELLER IS SELLING THE PROPERTY ON AN "AS IS", "WHERE IS" BASIS AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE PROPERTY, (2) SELLER MAKES NO REPRESENTATION OR WARRANTY OF TITLE OR FITNESS WITH REGARD TO THE PROPERTY AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTIES (EXPRESS, IMPLIED OR STATUTORY), WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, COVERING THE PROPERTY, AND (3) SELLER DOES NOT WARRANT TITLE, DESCRIPTION, VALUE, QUALITY, CONDITION, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF ANY OF THE FACILITIES, PIPELINES, TRUCK FACILITIES, APPURTENANT OR ASSOCIATED EQUIPMENT OR OTHER REAL OR PERSONAL PROPERTY LOCATED ON OR INCLUDED IN THE PROPERTY.
B. Seller makes no representations concerning the present or future value of the possible income, costs or profits, if any, to be derived from the Property.
C. Seller has not conducted incurred any general solicitation obligation or general advertising (as defined in Regulation D) liability, contingent or otherwise, nor made any agreement with respect to any broker or finder's fees arising out of or in any way related to the transaction contemplated by this Agreement.
D. Shell Pipeline Company LP is a limited partnership and Equilon Enterprises LLC dba Shell Oil Products US is a limited liability company, both duly organized, validly existing and in good standing under the Laws of the Securities offered State of Delaware and each is duly qualified to carry on business in the states in which its business requires it to be qualified.
E. Seller has the power and authority necessary to enter into and perform this Agreement and the transaction contemplated hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms execution, delivery and performance of this AgreementAgreement by Seller, and the transaction contemplated hereby, will have been duly authorizednot, executed, issued and delivered and will constitute valid and legally binding obligations with the passage of time or the giving of notice or both: (1) violate any provision of the Company formation documents of Seller, (2) violate any material agreement or instrument to which Seller is a party or by which Seller is bound, (3) violate any judgment, order, ruling or decree applicable to Seller as a party in accordance with their termsinterest, subject (4) violate any Law applicable to Seller or to this Agreement or (A5) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now result in the creation or hereafter in effect relating to creditors' rights and (B) that the remedy imposition of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any Lien on any of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperty.
(iii) F. The Sharesexecution, when issued delivery, and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability performance by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery Seller of this Agreement and the consummation of the transactions transaction contemplated hereby have been duly authorized by this all requisite action on the part of Seller. This Agreement do not has been duly executed and will not conflict with or result in a breach delivered on behalf of Seller and, at the Closing, all documents and instruments required hereunder to be executed and delivered by SELLER Seller shall have been duly executed and delivered by Seller. This Agreement does, and such documents and instruments shall, constitute legal, valid and binding obligations of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller enforceable in accordance with their terms, as contemplated by this Agreementsubject, except however, to the filing effect of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationbankruptcy, the information contained insolvency, reorganization, moratorium and similar Laws from time to time in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement effect relating to the Annual Meeting rights and remedies of Shareholders creditors, as well as to general principles of equity (regardless of whether such enforceability is considered in a Proceeding in equity or at law).
G. Seller is not (1) an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended or (2) a "holding company" or a "subsidiary company" of a "holding company" or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended or (3) a "foreign person" within the meaning of Section 1445 of the Code.
H. Except as set forth in the Disclosure Schedule, to Seller's knowledge, neither Seller nor any portion of the Property is in violation of or in default under any Law, including Environmental Laws, or governmental certification requirement and there are no presently existing environmental remediation operations or sites, or any conditions which Seller would consider to be a Material Adverse Environmental Condition, on any portion of the Property.
I. Except as set forth in the Disclosure Schedule, to Seller's knowledge, Seller has filed in a timely manner all required federal, state, and local income, sales, use, property, and franchise Tax returns related to the Property, and has paid (except amounts being diligently contested in good faith by appropriate Proceedings and disclosed in Section 7I of the Disclosure Schedule) all required Tax or similar assessments arising from or related to the Property, including any interest, penalties or additions attributable thereto shown as due on all such filings. Except as set forth in the Disclosure Schedule, no Proceeding or other actions which are pending, threatened or open seek the assessment or collection of additional Taxes of any kind from Seller specifically relating to any portion of the Property, and no other examination by the Internal Revenue Service or any other taxing authority affecting any portion of the Property is now pending. Taxes which Seller was required by Law to withhold or collect in respect to the Property have been withheld or collected and have been paid over to the proper Governmental Authorities or are properly held on June 26by Seller for such payment when due and payable.
J. Except as set forth in the Disclosure Schedule, 1997 or Quarterly Report on Form 10-Q to Seller's knowledge (1) Seller has all Permits necessary for the quarter ended June 30operation of the Property as currently conducted, 1997(2) each such Permit is in full force and effect, (3) Seller is in compliance with all its obligations with respect to those necessary Permits, and (4) no event has occurred which allows, or upon the giving of notice or the passage of time or both would allow, the revocation or termination of any Permit.
K. Except for the Excluded Assets and any title gaps for which Buyer has assumed the risk under Section 8D, and except as filed set forth in the Disclosure Schedule, to Seller's knowledge, the Pipelines, Truck Facilities, Real Property, Rights-of-Way, and Equipment constitute all of the properties and assets necessary for the operation of the Pipelines and the Truck Facilities as the Pipelines and the Truck Facilities are currently used and operated. Except for any title gaps for which Buyer has assumed the risk under Section 8D, and except as disclosed in the Disclosure Schedule, to Seller's knowledge, the Pipelines, Truck Facilities, Real Property, Rights-of-Way, and Equipment are free and clear of all Liens (except for Permitted Encumbrances) created by, through or under Seller, but not otherwise and Seller has not assigned, transferred, exchanged or conveyed the Pipelines, Truck Facilities, Real Property or Rights-of-Way to any Third Person.
L. Except as set forth in the Disclosure Schedule, to Seller's knowledge, Seller has not received (1) any written notice from any Governmental Authority of any actual or potential non-compliance with the Commission terms and conditions of any Permits with respect to any portion of the Property; or (2) any written notice of any civil, criminal or administrative Proceeding involving any portion of the Property relating in any way to applicable Environmental Laws.
M. Except as set forth in the Disclosure Schedule, to Seller's knowledge, (1) there is no pending or threatened Proceeding involving Seller or any of the Property, at law or in equity, by or before any Governmental Authority or any arbitrator or mediator which on the date hereof is still pending or threatened, and which, if adversely determined, would impair or prohibit the consummation of the transaction contemplated hereby and (2) there are no material orders, writs, judgments, stipulations, injunctions, decrees, determinations, awards or other decisions of any Governmental Authority, or any arbitrator or mediator, outstanding against Seller pertaining to any portion of the Property.
N. Except as set forth on the Disclosure Schedule, (i) there are no preferential rights to purchase applicable to the transfer of any portion of the Property and (ii) the transfer of the Property, except for the Assigned Contracts, Real Property, Rights-of-Way and Permits, does not contain require the consent from any untrue statement Third Person other than a Governmental Authority.
O. Seller has provided or made available to Buyer true and correct copies of a each Assigned Contract. Seller is not in material fact breach or omit to state any material fact necessary in order to make the statements therein, default in the light performance of its duties and obligations under any Assigned Contract. To Seller's knowledge, none of the circumstance under which they are made, not misleading. Since September 30, 1997, there other parties to any Assigned Contract is in breach or default in the performance of its duties and obligations thereunder and none of the Assigned Contracts has been no material adverse development in the business, properties, operations, financial condition terminated or results of operations of SELLERrevoked by any such other party.
(viiii) SELLER To Seller's knowledge, all currently effective filings heretofore made by Seller to the Michigan Public Service Commission, the U.S. Environmental Protection Agency, and the U.S. Department of Transportation were made in compliance with applicable Laws and the factual information contained therein was true and correct in all material respects as of the respective dates of such filings.
(ii) The right of Seller to receive payment pursuant to any tariff, rate schedule or similar instrument filed with or subject to the jurisdiction of any Regulatory Agency has not been suspended, and Seller has not received written notification questioning the validity of any such tariff, rate schedule or similar instrument.
Q. There are no material outstanding authorizations for capital expenditure respecting the Property for which Buyer will issue one be liable other than ordinary trade payables pursuant to which such expenditures are or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) may be required to be specified made.
R. Seller has not received any payments by BUYER prior virtue of a prepayment arrangement under any Assigned Contract which would obligate Buyer, after Closing, to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesrender services at some future time without receiving full payment therefor.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Markwest Energy Partners L P)
Seller’s Representations. SELLER Seller hereby represents and warrants to Purchaser, except as set forth in that certain schedule (the "Disclosure Schedule") attached hereto as Exhibit E and made a part hereof for all purposes, as follows:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is a duly organized, validly existing limited liability company in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The DebenturesState of Delaware. Seller has the full right and authority to enter into this Contract and consummate the sale, when issued transfers and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued assignments contemplated by it herein and delivered and will constitute valid and legally binding obligations each of the Company in accordance with their terms, subject persons signing this Contract and any other document or instrument contemplated hereby on behalf of Seller is authorized to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holdersdo so. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement Contract has been duly authorized, validly executed and delivered on behalf of SELLER by Seller, and is and at the time of the Closing will be a legal, valid and binding agreement obligation of SELLER in accordance with its termsSeller enforceable against Seller, subject to (A) except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyancereorganization, moratorium or similar laws of general application affecting the rights and remedies of creditors. All the documents executed by Seller which are to be delivered to Purchaser at the Closing are and at the time of Closing will be duly authorized, executed and delivered by Seller, and are and at the time of Closing will be legal, valid, and binding obligations of Seller enforceable against Seller, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and or similar laws now or hereafter in effect relating to creditors' of general application affecting the rights and (B) that the remedy remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawscreditors.
(vb) Seller has received no written notice of (and otherwise has no knowledge of) any plan or study by any governmental authority or agency which in any way will materially impair the continued use and operation of the Property as currently used and operated.
(c) Seller has received no written notice of (and otherwise has no knowledge of) any current, proposed or threatened eminent domain or similar proceeding, or private purchase in lieu of such proceeding, which would affect the Property in any way whatsoever.
(d) To the best of Seller's knowledge, Seller has no knowledge of, and Seller has received no written notice of, any violation of any federal, state, county, city or any other laws, ordinances, rules and regulations, including, but not limited to, those relating to environmental, zoning, land use and division, building, fire, health and safety matters, of any government or any agency, body or subdivision thereof bearing on the construction of the Improvements and on the operation, ownership or use of the Property (collectively, "Applicable Laws").
(e) Seller has received no written notice of any pending litigation which does or would affect the Property or Seller's ability to fulfill all of its obligations under this Contract. To Seller's knowledge, there exist no writs, injunctions, decrees, orders or judgments outstanding, nor any lawsuits, claims, proceedings, citations, directives, summons or investigations, pending or threatened in writing, relating to the ownership, use, maintenance or operation of the Property by any person or entity. Except as set forth in the Disclosure Schedule, there are, to Seller's knowledge, no outstanding claims on Seller's insurance policies which claims relate to the Property.
(f) The execution execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated Contract by this Agreement do Seller (i) does not and will not conflict with or result in a breach by SELLER of or default under the organizational documents of Seller, (ii) to the knowledge of Seller, does not and will not conflict with or result in a breach of any of the terms condition or provisions provision of, or constitute a default under, or result in the certificate acceleration, creation or imposition of incorporation (any lien, charge or charter) or by-laws encumbrance upon any of SELLER, or the Property by reason of the terms of any indenturecontract, mortgage, deed of trust lien, agreement, indenture, instrument, decree or other material agreement or instrument judgment to which SELLER the Seller is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares binding upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERSeller.
(viiig) SELLER will issue one Seller has not entered into any and there are no leases relating to any portion of the Property; and no person (other than Seller) has any right of possession to the Property or more certificates representing any part thereof. There are no leasing commissions or tenant finish costs or allowances due under any Leases which would be payable by Purchaser after the Debentures Closing.
(h) Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as defined in the name Internal Revenue Code ("Code")), and is not subject to the provisions of BUYER in such denominations (in multiples of $25,000Sections 897(a) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion 1445 of the Debentures. SELLER further warrants that Code related to the Debentures and the Shares shall be transferable on the books and records withholding of SELLER as sales proceeds to foreign persons.
(i) Seller has delivered to Purchaser complete copies of Service Contracts and, to Seller's knowledge, Seller has delivered or made available all other due diligence materials requested in writing by Purchaser which are in Seller's possession and to Seller's knowledge, Seller has not failed to make available, at a reasonably accessible central location, to Purchaser for inspection any books, records, reports, or engineering or other studies relevant to the extent provided in the Transaction Documentsconstruction, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale maintenance, leasing, or operation of the SecuritiesProperty which are in Seller's possession.
Appears in 1 contract
Seller’s Representations. SELLER Seller represents to Purchaser that the facts recited below are true and warrants accurate and will be true and accurate on the Closing Date. If, prior to the Closing Date, Seller discovers that one or more of such facts are untrue or inaccurate, it will inform Purchaser in writing of its discovery. Such representations of Seller shall survive the Closing Date for a period of one (1) year except to the extent that Seller gives Purchaser written notice prior to the Closing Date of the falsity or inaccuracy of any representation, or Purchaser otherwise obtains actual knowledge prior to the Closing Date of the falsity or inaccuracy of any representation or warranty, and Purchaser nevertheless elects to close this transaction, and except to the extent that Purchaser gives Seller written notice of a breach of warranty or representation after the Closing and prior to the expiration of such one (1) year period. In accordance with the immediately preceding sentences, Seller represents to Purchaser as follows:
(ia) SELLER Seller has not conducted received no written notice of any general solicitation currently outstanding violation of any federal, state, county or general advertising (as defined in Regulation D) with respect to municipal law, ordinance, order, regulation or requirement affecting the Property and Seller has no actual knowledge of any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawssuch violation.
(iiib) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will Seller has not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights received any written notice of any shareholder existing or threatened condemnation or other legal action of SELLER with respect to any kind involving the Shares contained in SELLER'S Certificate Property and Seller has no actual knowledge of Incorporation any existing or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now threatened condemnation or hereafter in effect relating to creditors' rights and (B) that other legal action involving the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperty.
(vc) The Neither the execution and delivery of this Agreement and the consummation nor Seller’s performance hereof are restricted by or violate any contractual or other obligations of the transactions contemplated Seller.
(d) Seller is a duly organized and validly existing Delaware corporation.
(e) True, correct and complete copies of the Leases are available at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx and have been delivered by this Agreement do Seller to Purchaser.
(f) From the date hereof through the Closing Date, Seller shall operate the Property using sound business judgment and in a manner consistent with its past practices (including, without limitation, timely paying all bills, charges, and other expenses of the Property or the business conducted thereon).
(g) Seller’s Rent Roll attached as Exhibit “B” is true, correct and complete as of its date of issuance.
(h) Seller has not received (and will not conflict with receive) any rent, fees or result in a breach by SELLER of other charges due under any of the terms Leases for a period of more than one (1) month in advance of the current month’s base rent, or, of the current month’s installments of other fees or provisions ofcharges under the Leases.
(i) Seller, as the declarant under that certain Declaration of Covenants and Restrictions Upon the Use of Land Situated in Fairlane Business Park dated October 4, 1993, recorded in Liber 26919, page 103, as amended by that certain First Amendment to Declaration of Covenants and Restrictions Upon the Use of Land Situated in Fairlane Business Park dated March 6, 2002, effective December 21, 1999, and recorded March 13, 2002, in Liber 35773, page 99, aforesaid records, as further amended by that certain Second Amendment to Declaration of Covenants, Conditions and Restrictions Upon the Use of Land Situated in Fairlane Business Park dated March 6, 2002, effective January 17, 2001, and recorded March 13, 2002, in Liber 35773, page 203, Xxxxx County, Michigan Public Records has not yet formed Fairlane Business Park Owner’s Association.
(j) Except as disclosed herein or on the Rent Roll, there are no other leases, licenses or similar agreements affecting the Property. Seller represents and warrants the following with respect to the Leases:
a. Seller is the sole owner of the lessor’s interest in ail of the Leases and the rent due thereunder and to Seller’s actual knowledge each Lease has been duly and validly executed and delivered by the parties thereto and is in full force and effect;
b. The copy of each Lease made available or delivered to Purchaser by Seller is true, complete and accurate and is unmodified except as set forth in any amendments listed in the Rent Roll, and there are no agreements, oral or written, between the parties to the Lease which in any material manner vary the obligations or rights of either party;
c. Seller has received no written notice of any default by Seller under any Lease and, to the best of Seller’s actual knowledge, there is no default by Seller under any Lease nor to the best of Seller’s actual knowledge has any event occurred which with the giving of notice and/or the passage of time would constitute such a default;
d. Except as shown in the Rent Roll, to the best of Seller’s knowledge, there is no default by Seller’s Tenants under any Lease;
e. Except as disclosed in Exhibit P-3 attached hereto and incorporated herein by this reference, all painting repairs, alterations and other work required to be performed by Seller, as Landlord, under the Leases or under any other agreement, and all other obligations of Seller relating to such matters and required to be performed thereunder have been fully performed and paid for in full or will be fully performed and paid for by Seller when due prior to the Closing Date;
f. No tenant has a right of refusal, option right or other right to purchase all or any portion of the Property; and
g. Except as identified on the Rent Roll, no tenant is or shall become entitled to any rebate or free rent for any period subsequent to the Closing without the prior written consent of Purchaser, no modification to the Leases shall be made prior to the Closing Date without the prior written consent of Purchaser, and no new leases shall be entered into by Seller after the date hereof, except with the prior written consent of Purchaser, which consent will not be unreasonably withheld or delayed.
h. To the best of Seller’s actual knowledge, there is no default by any Tenant under the Leases nor, to the best of Seller’s actual knowledge, has any event occurred which with the giving of notice and/or the passage of time would constitute such a default.
i. To the best of Seller’s actual knowledge, no Tenant has assigned its interest in its Lease or sublet any portion of the premises leased to such Tenant under its Lease, except as set forth in the Rent Roll, other than that certain Sublease Agreement by and between Xxxxx Industries, Inc., as sublessor, and Ford Motor Company, as sublessee, dated April 8, 2002, and that certain Sublease Agreement by and between Xxxxx Industries, Inc., as sublessor, and Ford Motor Company, as sublessee, dated October 24, 2001, and other than that certain Sublease Agreement by and between Xxxxx Industries, Inc., as sublessor, and Ford Motor Company, as sublessee, dated June 20, 2001 and that certain Sublease Agreement by and between Xxxxx Industries, Inc. and Xxxxxxxx and Co. dated June 6, 2001.
j. No rental, lease, or constitute a default other commissions with respect to any Lease are payable to Seller, to any partner or member of Seller, any party affiliated with or related to Seller or any partner or member of Seller or to any third party whatsoever. All commissions payable under, the certificate of incorporation (or charter) or by-laws of SELLERrelating to, or any indenture, mortgage, deed as a result of trust or other material agreement or instrument to which SELLER is a party the Leases have been cashed-out and paid and satisfied in full by Seller or by which it or Seller’s predecessor in title to the Property, and no further commissions shall be due and payable as a result of any Lease.
k. To Seller’s actual knowledge, there are no defaults under any of its properties or assets the Service Contracts described on Exhibit “C” attached hereto.
l. Seller has provided Purchaser with complete and accurate copies of all Service Contracts. All such Service Contracts are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance in full force and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures effect in accordance with their termsrespective provisions, as contemplated all payments required to be made by this AgreementSeller or the “Owner” thereunder have been paid in full, and there is no default, or claim of default, or any event which the passage of time or notice, or both, would constitute a default on the part of any party to any of such Service Contracts. All such Service Contracts are terminable without penalty or obligation to pay any severance or similar compensation on no more than thirty (30) days’ notice, except as expressly set forth on Exhibit “Q”. All Service Contracts are assignable by Seller to Purchaser and no Service Contract prohibits such assignment or provides for any right, claim, or cause of action against Purchaser or the filing Property upon such Assignment. Seller has cancelled or will cancel, effective as of the Closing, any agreement in the nature of a Form D management agreement or service contract between Seller and any partner or member of Seller or any party affiliated with the Commission;or related to Seller or any partner or member of Seller other than that certain 2004 Landscape Term Sheet dated October 31, 2003 related to that certain Landscaping Agreement by and between Ford Motor Land Development Corporation and 000 Xxxxxxxx Xxxxx – Xxxxx Industries and that certain 2004 Landscape Term Sheet dated October 31, 2003 related to that certain Landscaping Agreement by and between Ford Motor Land Development Corporation and 000 Xxxxxxxx Xxxxx – Xxxxx Industries.
(vii) To the best m. Attached hereto as Exhibit “R” is a complete and accurate list and description of all of the Company's knowledge warranties and guaranties of contractors, vendors, manufactures and other parties which are known by Seller to be in effect and to relate to the Property. Within five (5) days after reasonable investigationthe Effective Date, Seller shall provide Purchaser with complete and accurate copies of all such warranties and guaranties which are written, which are known by Seller to relate to the Property and which are in the possession or control of Seller.
n. Other than the Leases, the information contained Service Contracts, the Permitted Exceptions, and any agreement which Xxxxx Industries, Inc. may have entered into to the knowledge of Seller, there are no leases, service contracts, management agreements, or other material agreements or instruments in force and effect, oral or written, entered into by Seller that grant to any person whomsoever or any entity whatsoever any right, title, interest or benefit in or to all or any part of the Company's Annual Report on Form 10K for Property, any rights to acquire all or any part of the year ended December 31, 1996, Proxy statement Property or any rights relating to the Annual Meeting use, operation, management, maintenance, or repair of Shareholders held on June 26, 1997 all or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light part of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERProperty.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase Agreement (Wells Real Estate Investment Trust Ii Inc)
Seller’s Representations. SELLER represents Each of the Sellers (who makes the following representations only to the extent of the interests owned by each of the Sellers in the Leases) represents, warrants and warrants as followsagrees to and with Buyer that:
(ia) SELLER As of the Closing, the Issued Leases are in full force and effect, and Seller has or will have as of the Closing fully complied with all of the terms and provisions thereof which it is obligated to perform for all periods up to the Closing. Sellers shall own or otherwise have the right to assign and convey or cause to be assigned and conveyed the Issued Leases, all of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Sellers of not conducted any general solicitation less than 83.333%, prior to reservation of an overriding royalty equal to five percent (5%) of 8/8ths as provided for below.
(b) There is no litigation or general advertising (as defined in Regulation D) with respect governmental investigation or proceeding pending or, to the knowledge of the Sellers, threatened affecting the Leases or which would have the effect of restraining or prohibiting any of the Securities offered hereby;transactions contemplated by this Agreement.
(iic) The DebenturesThis Agreement constitutes the valid and binding agreement of Sellers in accordance with its terms, when issued and delivered pursuant all instruments required hereunder to be executed by Sellers at the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will Closing shall constitute valid and legally binding obligations agreements of the Company Sellers in accordance with their terms. The execution, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium delivery and similar laws now or hereafter in effect relating to creditors' rights performance of this Agreement and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be transactions contemplated hereby have been duly and validly authorized and issued, fully-paid and non assessable and will not subject by all requisite action on the holders thereof to personal liability by reason part of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a partySellers;
(ivd) This Agreement has been duly authorized, validly executed and delivered on behalf by Sellers and all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and delivered by Seller;
(e) Sellers have incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of SELLER and is a valid and binding agreement of SELLER in accordance with its termsthis transaction for which Buyer shall have any responsibility whatsoever;
(f) Sellers shall not enter into any new agreements or commitments or incur, subject or agree to incur, any contractual obligation or liability (Aabsolute or contingent) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now affecting or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any of the court before Leases which any proceedings therefor may be brought and (C) to extend beyond the extent that the indemnification provisions contained Closing except in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and connection with the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except without the filing written consent of a Form D with the Commission;Buyer; and
(viig) To the best Sellers have relied upon their own independent investigation made by each of them and their respective representatives, if any, and have made such investigation of the Company's knowledge after reasonable investigation, Leases as deemed appropriate under the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleadingcircumstances. Since September 30, 1997, there No Seller has been no material adverse development in given any oral or written representations or assurances from any other Seller or the business, properties, operations, financial condition or results of operations of SELLERBuyer other than as set forth herein.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER Seller represents to Purchaser that, to the actual knowledge of Xxx Xxxxxx, Seller’s Regional Facilities Manager for the Mid-West: (A) there are no undisclosed latent defects; (B) Seller has not received any written notice of any pending orders or ordinances or resolutions that have been enacted or adopted authorizing work or improvements which may be assessed against the Real Estate;
(C) there are no City, County or State orders that have been served upon Seller(s) in writing requiring work to be done or improvements to be made which have not been performed. Purchaser represents and warrants as follows:
to Seller that (i) SELLER it has not heretofore conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any and all inspections of the Securities offered hereby;
Real Estate, including without limitation, any inspections relating to the habitability and suitability of the Real Estate, as Purchaser deems reasonably necessary, and that Seller has afforded it every reasonable access to the Real Estate for such purposes; (ii) The DebenturesPurchaser is solely responsible for all costs and expenses incurred by Purchaser in connection with any such inspection(s), when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The SharesPurchaser would not have made or entered into this Contract but for Purchaser’s independent determination, when issued and delivered without reliance upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability any representation or warranties made by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
Seller (iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing aside from those set forth in this Section shall affect above), that the Real Estate is in any way BUYER'S obligations good and agreement to comply with all applicable securities laws upon resale of the Securitiessatisfactory condition and suitable for Purchaser’s intended purposes. PURCHASER ACKNOWLEDGES AND AGREES THAT THE SELLER HAS NOT MADE ANY OTHER REPRESENTIONS OR WARRANTIES, EXPRESS OR IMPLIED, ASIDE THOSE SET FORTH ABOVE, AND, THAT AUCTIONEERS/BROKER HAVE NOT MADE ANY REPRESENTATIONS OR WARRANTIES TO PURCHASER OF ANY KIND. PURCHASER HEREBY CERTIFIES AND AFFIRMS THAT (1) IT HAS RELIED SOLEY UPON ITS OWN EXAMINATIONS OF THE REAL ESTATE IN DETERMINING WHETHER TO MAKE AND ENTER INTO THIS CONTRACT AND (2) IT HAS NOT RELIED UPON ANY REPRESENTATION BY THE AUCTIONEERS/BROKER INVOLVED, NONE OF WHOM SHALL BE RESPONSIBLE FOR ANY DEFECTS IN THE REAL ESTATE.
Appears in 1 contract
Seller’s Representations. SELLER represents (a) The representations and warrants as followswarranties of Seller in this Section 5.1 are a material inducement for Buyer to enter into this Agreement. Buyer would not purchase the Property from Seller without such representations and warranties of Seller. Such representations and warranties shall survive the Closing for nine (9) months after the Closing Date, at which time such representations and warranties shall terminate.
(b) Seller makes the following representations and warranties to Buyer:
(i) SELLER has not conducted any general solicitation or general advertising (as defined Seller is a limited liability company duly formed and validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) State of Delaware. Seller has full power and authority to enter into this Agreement and to perform this Agreement. The Debenturesexecution, when issued delivery and delivered pursuant to the terms performance of this Agreement, will Agreement by Seller have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized by all necessary action on the part of Seller and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holdersall required consents or approvals have been duly obtained. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER This Agreement is a party;
(iv) This Agreement has been duly authorizedlegal, validly executed and delivered on behalf of SELLER and is a valid and binding agreement obligation of SELLER Seller, enforceable against Seller in accordance with its terms, subject to (A) the effect of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium and or other similar laws now affecting the rights of creditors generally.
(ii) As of the Agreement Date, except as disclosed to Buyer in writing, there is no pending litigation involving Seller and affecting the Property, nor to Seller’s actual knowledge, has any such litigation been threatened against Seller.
(iii) The Lease is the only lease or hereafter occupancy agreement with respect to the Property as of the Agreement Date. Seller has delivered a true, correct and complete copy of the Lease to Buyer. As of the Agreement Date, neither Seller nor, to Seller’s knowledge, the tenant under the Lease, is in effect relating default in its obligations under the Lease. Except as set forth on Exhibit E attached hereto, no brokerage or leasing commission, tenant improvement allowance (including the Allowance (as defined in the Lease)), free rent (including the Abated Rent (as defined in the Lease)), or other compensation will be due or payable with respect to creditors' the Lease after the Closing (the “Tenant Inducements”). Seller makes no representation or warranty with respect to any impact on the rights or remedies of Seller (as landlord) or tenant under the Lease or the Guaranty due to any governmental restriction (including governmental preemption in connection with a national emergency or a governmental warning, advisory, travel restrictions, or similar actions or pronouncements of governmental authorities), or a mandated shutdown of work by an applicable governing body (including governmental authorities and local unions) due to a public health emergency (B) that the remedy of specific performance and injunctive including epidemics, pandemics, famine, disease, plague, quarantine, and other forms health risk such as those declared or recognized by the Centers for Disease Control, the World Health Organization, national or state governments, or similar bodies) in connection with the COVID-19 pandemic (collectively referred to herein as the “COVID-19 Restrictions”). The Lease and the Guaranty are valid and in full force and effect as of equitable relief the Agreement Date. Except as may be subject set forth in Schedule 1, to equitable defenses and to the discretion Seller’s knowledge, as of the court before Agreement Date there are no defaults or breaches under the Lease by any party thereto.
(iv) To Seller’s knowledge, as of the Agreement Date, Seller has not received any written notice from any governmental authority of any violation of any governmental requirements concerning the Property, which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawshas not been remedied.
(v) The execution and delivery Seller is not a “foreign person” as defined in section 1445 of this Agreement the Internal Revenue Code of 1986, as amended, and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;Income Tax Regulations thereunder.
(vi) No authorization, approval or consent of or filing Seller has not dealt with any federal, state real estate broker or local governmental body of finder in connection with the United States is legally required for the issuance and sale of the Debentures and Property to Buyer or this Agreement other than Xxxxx Xxxx LaSalle (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;“Broker”).
(vii) To Neither Seller, nor any beneficial owner thereof: (i) is listed on the best of Specially designated Nationals and Blocked Persons Lists maintained by OFAC or (ii) is a person who has been determined by competent authority to be subject to the Company's knowledge after reasonable investigationprohibitions contained in Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the information “Order”) and other similar requirements contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light rules and regulations of the circumstance under which they Office of Foreign Asset Control, 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 made, not misleading. Since September 30, 1997, there has been no material adverse development in collectively called the business, properties, operations, financial condition or results of operations of SELLER“Orders”).
(viii) SELLER will issue Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any 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, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
(ix) Seller does not employ any employees at the Property that Buyer shall be expected or required to employ following the Closing Date.
(x) Seller is not a party to any service contracts at the Property that cannot be terminated upon thirty (30) days’ written notice. All of said service contracts are listed on Schedule 2 attached hereto and by this reference incorporated herein. Seller has provided Buyer with true, correct and complete copies of all of the service contracts. As of the Agreement Date, Seller is not in default under any of the service contracts, and to the Seller’s current, actual knowledge, no other party to any service contract is in default thereunder.
(xi) Seller is not (i) a plan which is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as defined in §3(3) of ERISA, nor a plan as defined in §4975(e)(1) of the Internal Revenue Code of 1986, as amended (each of the foregoing hereinafter referred to collectively as a “Plan”), (ii) a “governmental plan” as defined in §3(32) of ERISA, or (iii) a “party in interest,” as defined in §3(14) of ERISA, to a Plan, except with respect to plans, if any, maintained by Seller, nor do the assets of Seller constitute “plan assets ” of one or more certificates representing of such Plans within the Debentures in meaning of Department of Labor Regulations §2510.3-101. Seller is acting on its own behalf and not on account of or for the name benefit of BUYER in such denominations any Plan.
(in multiples c) For purposes of $25,000) to be specified by BUYER prior to closing this Agreement and will issue one any document delivered at Closing, whenever the phrase “Seller’s knowledge” or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion “knowledge” of the Debentures. SELLER further warrants that the Debentures and the Shares Seller or words of similar import are used, they shall be transferable on deemed to refer to facts within the books actual current knowledge only of Xxxxx Xxxxxxxx, and records no others, without inquiry or investigation of SELLER as any kind or nature and to without imputation. In no event shall Buyer have any personal claim against the extent provided above named individuals in the Transaction Documents, subject to compliance with Federal connection herewith and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with Buyer waives all applicable securities laws upon resale of the Securitiesclaims which Buyer now has or may later acquire against such persons.
Appears in 1 contract
Samples: Purchase Agreement (Invesco Real Estate Income Trust Inc.)
Seller’s Representations. SELLER Seller represents the following as of the date of this Agreement and warrants as followsof the Closing Date:
A. EXCEPT AS SET FORTH HEREIN AND IN THE CONVEYANCE DOCUMENTS: (i1) SELLER IS SELLING THE PROPERTY ON AN "AS IS", "WHERE IS" BASIS AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE PROPERTY, (2) SELLER MAKES NO REPRESENTATION OR WARRANTY OF TITLE OR FITNESS WITH REGARD TO THE PROPERTY AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTIES (EXPRESS, IMPLIED OR STATUTORY), WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, COVERING THE PROPERTY, AND (3) SELLER DOES NOT WARRANT TITLE, DESCRIPTION, VALUE, QUALITY, CONDITION, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE FACILITIES, PIPELINES, APPURTENANT OR ASSOCIATED EQUIPMENT OR OTHER REAL OR PERSONAL PROPERTY LOCATED ON OR INCLUDED IN THE PROPERTY.
B. Seller makes no representations concerning the present or future value of the possible income, costs or profits, if any, to be derived from the Property.
C. Seller has not conducted incurred any general solicitation obligation or general advertising (as defined in Regulation D) liability, contingent or otherwise, nor made any agreement with respect to any broker or finder's fees arising out of or in any way related to the transaction contemplated by this Agreement.
D. Seller is a limited partnership duly organized, validly existing and in good standing under the Laws of the Securities offered hereby;
(ii) State of Delaware and is duly qualified to carry on business in the states in which its business requires it to be qualified. The DebenturesCompanies will be limited partnerships duly organized and validly existing under the laws of the State of Delaware. The Companies have not yet been organized, when issued and delivered will not, prior to the Closing, engage in any business activities or have any liabilities or assets other than the ownership interests in Capline or Capwood pipeline systems that will be transferred to the Companies which are to be conveyed to Buyer pursuant to Section 1 A.
E. Seller has the terms power and authority necessary to enter into and perform this Agreement and the transaction contemplated hereby, and the execution, delivery and performance of this AgreementAgreement by Seller, and the transaction contemplated hereby, will have been duly authorizednot, executed, issued and delivered and will constitute valid and legally binding obligations with the passage of time or the giving of notice or both: (1) violate any provision of the Company formation documents of Seller, (2) violate any material agreement or instrument to which Seller is a party or by which Seller is bound, (3) violate any judgment, order, ruling or decree applicable to Seller as a party in accordance with their termsinterest, subject (4) violate any Law applicable to Seller or to this Agreement or (A5) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now result in the creation or hereafter in effect relating to creditors' rights and (B) that the remedy imposition of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any Lien on any of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperty.
(iii) F. The Sharesexecution, when issued delivery, and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability performance by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery Seller of this Agreement and the consummation of the transactions transaction contemplated hereby have been duly authorized by this all requisite action on the part of Seller. This Agreement do not has been duly executed and will not conflict with or result in a breach delivered on behalf of Seller, and, at the Closing, all documents and instruments required hereunder to be executed and delivered by SELLER Seller shall have been duly executed and delivered by Seller. This Agreement does, and such documents and instruments shall, constitute legal, valid and binding obligations of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller enforceable in accordance with their terms, as contemplated by this Agreementsubject, except however, to the filing effect of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigationbankruptcy, the information contained insolvency, reorganization, moratorium and similar Laws from time to time in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement effect relating to the Annual Meeting rights and remedies of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997creditors, as filed with well as to general principles of equity (regardless of whether such enforceability is considered in a Proceeding in equity or at law).
G. Seller is not (1) an "investment company" or a company "controlled" by an "investment company" within the Commission does not contain any untrue statement meaning of the Investment Company Act of 1940, as amended or (2) a "holding company" or a "subsidiary company" of a material fact "holding company" or omit to state any material fact necessary in order to make an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the statements thereinmeaning of the Public Utility Holding Company Act of 1935, as amended or (3) a "foreign person" within the meaning of Section 1445 of the Code.
H. Except as set forth in the light Disclosure Schedule, to Seller's knowledge, Seller is not in violation of or in default under any Law or governmental certification requirement.
I. Except as set forth in the Disclosure Schedule, to Seller's knowledge, Seller and the Companies have filed in a timely manner all required federal, state, and local income, sales, use, property, and franchise Tax returns related to the Property or the Companies, and have paid (except amounts being diligently contested in good faith by appropriate Proceedings and disclosed in Section 7I of the circumstance under which they are madeDisclosure Schedule) all required Tax or similar assessments arising from or related to the Property, not misleadingincluding any interest, penalties or additions attributable thereto shown as due on all such filings. Since September 30, 1997, there has been no material adverse development Except as set forth in the businessDisclosure Schedule, propertiesno Proceeding or other actions which are pending, operationsthreatened or open seek the assessment or collection of additional Taxes of any kind from Seller or the Companies specifically relating to any portion of the Property or the Companies, financial condition and no other examination by the Internal Revenue Service or results any other taxing authority affecting any portion of operations of SELLER.
the Property or the Companies is now pending. Taxes which Seller or the Companies were required by Law to withhold or collect in respect to the Property have been withheld or collected and have been paid over to the proper Governmental Authorities or are properly held by Seller or the Companies for such payment when due and payable. The Companies each are and have at all times been treated (viiior, if not yet formed, will be treated) SELLER as disregarded entities under Treasury Regulation sections 7701-2 and 7701-3 and have not elected (or, if not yet formed, will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000not elect) to be specified by BUYER prior to closing treated as associations taxable as corporations under Treasury Regulation sections 7701-2 and will issue one 7701-3. None of the Property (including assets held or more certificates representing the Shares in such denominations to be specified held by Buyer upon conversion the Companies at Closing) constitutes an interest in a partnership for federal income tax purposes.
J. Except as set forth in the Disclosure Schedule, to Seller's knowledge (1) Seller has all Permits necessary for the operation of the Debentures. SELLER further warrants that Property as currently conducted, (2) each such Permit is in full force and effect, (3) Seller is in compliance with all its obligations with respect to those necessary Permits, and (4) no event has occurred which allows, or upon the Debentures giving of notice or the passage of time, or both, would allow the revocation or termination of any Permit.
K. Except for the Excluded Assets and any title gaps for which Buyer has assumed the Shares shall be transferable on the books risk under Section 9D, and records of SELLER except as and to the extent provided set forth in the Transaction DocumentsDisclosure Schedule, subject to Seller's knowledge, the Pipelines, Real Property, Rights-of-Way, and Equipment constitute all of the properties and assets necessary for the operation of the Pipelines as the Pipelines are currently used and operated. Except for any title gaps for which Buyer has assumed the risk under Section 9D, and except as disclosed in the Disclosure Schedule, to Seller's knowledge, the Pipelines, Real Property, Rights-of-Way, and Equipment are free and clear of all Liens (except for Permitted Encumbrances) created by, through or under Seller, but not otherwise.
L. Except as set forth in the Disclosure Schedule, to Seller's knowledge, Seller has not received (1) any written notice from any Governmental Authority of any actual or potential non-compliance with Federal the terms and State securities laws. Nothing in this Section shall affect conditions of any Permits with respect to any portion of the Property; or (2) any written notice of any civil, criminal or administrative Proceeding involving any portion of the Property relating in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale Environmental Laws.
M. Except as set forth in the Disclosure Schedule, to Seller's knowledge, (1) there is no pending or threatened Proceeding involving Seller or any of the SecuritiesProperty, at law or in equity, by or before any Governmental Authority or any arbitrator or mediator which on the date hereof is still pending or threatened, and which, if adversely determined, would impair or prohibit the consummation of the transaction contemplated hereby and (2) there are no material orders, writs, judgments, stipulations, injunctions, decrees, determinations, awards or other decisions of any Governmental Authority, or any arbitrator or mediator, outstanding against Seller pertaining to any portion of the Property.
N. Seller owns, or will own at Closing, title to One Hundred percent (100%) of the ownership interests in each of the Companies and such ownership interests will be assigned and transferred to Buyer at Closing free and clear of any encumbrance, security agreement, voting agreement, restriction, preferential right, lien or charge of any kind or character.
O. Except for Seller's allowance oil and except as set forth in the Disclosure Schedule, no Affiliate of Seller has, or is required, or has been required within the last 12 months, to provide line fill in either the Capline or Capwood pipeline systems.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Plains All American Pipeline Lp)
Seller’s Representations. SELLER represents and warrants as follows:
(i) SELLER has Notwithstanding any provision to the contrary set forth in this Agreement, the representations of Seller expressly set forth in Paragraph 10 of this Agreement shall survive Closing under this Agreement for a period of nine (9) months (the “Survival Period”); provided, however, that the representations of Seller set forth in this Agreement with respect to Existing Leases for which a Tenant Estoppel Certificate is delivered shall not conducted survive Closing, except as to any general solicitation representation that is not confirmed or general advertising is contradicted by the Tenant Estoppel Certificate in question.
(ii) After the Closing Date, Seller shall have no liability to Buyer by reason of an unintentional breach or default of any of Seller’s representations. Seller shall only have liability to Buyer by reason of an intentional breach or default of any of Seller’s representations if Buyer shall give to Seller written notice (“Warranty Notice”) of an intentional breach or default within the Survival Period, and shall give to Seller an opportunity to cure any such breach or default within a reasonable period of time after Buyer’s Warranty Notice. If Seller fails to cure such intentional breach or default, Buyer shall have available to it such remedies as defined provided at law; provided, however, in Regulation D) no event shall the liability of Seller to Buyer by reason of an intentional breach or default of any of Seller’s representations exceed $500,000.00. Seller’s liability shall be limited to actual damages and shall not include consequential damages. Any litigation with respect to any representation must be commenced within ninety (90) days from the date of the Securities offered hereby;
(ii) The DebenturesWarranty Notice, when issued and delivered pursuant to the terms of this Agreementif not commenced within such time period, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and deemed to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitieshave waived its claims for such breach or default.
Appears in 1 contract
Samples: Agreement of Sale (Corporate Office Properties Trust)
Seller’s Representations. SELLER Seller warrants and represents and warrants to Buyer as follows:
(i) SELLER 4.1.1 Seller is a limited partnership validly formed, in good standing and qualified to do business in the State of Pennsylvania. Seller has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect full power and authority to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of enter into this Agreement, will to perform this Agreement, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized by all necessary action on the part of Seller, and issued, fully-paid all required consents and non assessable approvals have been duly obtained and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or under any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
4.1.2 Except as shown on the Title Commitment, Schedule 4.1.2 attached hereto, and to the best of Seller’s knowledge, Seller owns (i) good, indefeasible, and insurable fee simple title to the Real Property, subject only to the Permitted Exceptions, and (ii) good and marketable title to the Personal Property. There are no outstanding rights of first refusal, rights of first offer, rights of reverter, or options to purchase relating to the Property or any interest therein. There are no unrecorded or undisclosed documents or other matters which affect title to the Property.
4.1.3 Seller has not entered into, and Seller does not know of, any other agreements or understandings (whether oral or written) with respect to the Property or any portion thereof that will be binding upon Buyer after Closing, other than the Tenant Leases, Permitted Exceptions and Assumed Service Contracts. There are no parties in possession of the Property other than tenants under the Tenant Leases. Subject to the leasehold rights of Tenants under the Tenant Leases, Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property, without material complaint or objection by which it or any person.
4.1.4 Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of 1986, as amended (the “Code”).
4.1.5 Neither Seller nor any of its properties affiliates, nor any of their respective partners, members, shareholders or assets other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are boundrestricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or any existing applicable decreeSupport Terrorism), judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER action, and is not and will not engage in any dealings or any of its properties transactions or assets;be otherwise associated with such persons or entities.
(vi) 4.1.6 No authorization, consent or approval or consent of or filing with any federalgovernmental authority (including, state or local governmental body of the United States without limitation, courts) is legally required for the issuance execution and sale delivery by Seller of this Agreement or the Debentures and (provided performance of its obligations hereunder.
4.1.7 There are no commission actions, suits or other remuneration is paid proceedings pending, whether in litigation, arbitration, mediation or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their termsotherwise, as contemplated by this Agreementor, except the filing of a Form D with the Commission;
(vii) To to the best of Seller’s knowledge, threatened against or affecting (i) the Company's knowledge after reasonable investigationProperty or any portion thereof, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.ii)
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT IV, Inc.)
Seller’s Representations. SELLER Seller hereby represents and warrants as followsto Buyer that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Each of Seller and the Cable Subsidiaries is a corporation duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;State of Colorado. Seller and the Cable Subsidiaries each have all requisite corporate power and authority to own and operate its properties and to carry on its business as now and where being conducted.
(iib) The Debentures, when issued All necessary consents and delivered pursuant to approvals have been obtained by Seller for the terms execution and delivery of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement by Seller has been duly and validly authorized and approved by all necessary action of Seller; provided, however, that the approval of the Board of Directors of Seller of the execution, delivery and performance of this Agreement has not been obtained as of the date hereof, but Seller will use its best efforts to obtain such approval, which must be received prior to the Augusta Closing Date. This Agreement is a valid and binding obligation of Seller, enforceable against it in accordance with its terms, except insofar as the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity.
(c) Subject to the receipt of any required consents, Seller and the consummation Cable Subsidiaries each have full legal power, right and authority to sell and convey to Buyer and the Colorado Subsidiary, as applicable, legal and beneficial title to the Assets, and Seller's and the Cable Subsidiaries' sale to Buyer and the Colorado Subsidiary, as applicable, shall transfer good and marketable title thereto, free and clear of the transactions contemplated by all security interests, liens, pledges, charges and encumbrances of every kind, other than Permitted Liens.
(d) The execution, delivery and performance of this Agreement do by Seller will not violate any provision of law and will not not, with or without the giving of notice or the passage of time, conflict with or result in a any breach by SELLER of any of the terms or provisions conditions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust agreement or other material agreement or instrument to which SELLER Seller is a party or by which it Seller or any of its properties or assets the Assets are bound. The execution, or any existing applicable decree, judgment or order delivery and performance of this Agreement by Seller will not result in the creation of any courtsecurity interest, federal lien, pledge, charge or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of encumbrance upon the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERAssets.
(viiie) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures The Alexandria Stock and the Shares shall JCM Stock has been duly and validly authorized, and is issued and outstanding, fully paid and nonassessable. There are no outstanding subscriptions, options, warrants, calls, contracts, demands, commitments, conversion rights or other agreements or arrangements of any character or nature whatever (other than the rights granted to Buyer hereunder) under which Seller is or may be transferable on the books and records obligated to issue any shares of SELLER as and capital stock of Jonex xx Alexandria or JCM or warrants or options to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in purchase any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale shares of the Securitiescapital stock of Jonex xx Alexandria or JCM.
Appears in 1 contract
Seller’s Representations. SELLER Seller represents and warrants to Purchaser as follows:
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) Seller is a body corporate and politic created by compact between the States of New York and New Jersey with respect to any the consent of the Securities offered herebyCongress of the United States of America, and Seller further represents to Purchaser that whenever the issue has arisen in the Federal District Courts for the State of New York, the United States Court of Appeals for the Second Circuit, and the Federal District Court and Court of Appeals for the District of Columbia, Seller has been held to be a "political subdivision" of a state; the parties acknowledge that a staff attorney in the Pre-Merger Notification Office of the Federal Trade Commission has advised Seller's and Purchaser's counsel (in an informal opinion given by telephone) that transactions by Seller do not require compliance with the notification and waiting period requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder (the "HSR Act"). Accordingly, Seller does not intend to make any filing under the HSR Act;
(ii) The Debenturesexecution, when issued delivery and delivered pursuant to the terms performance of this Agreement, Agreement (including the execution and delivery of the Lease) are within Seller's power and on the Closing Date will have been duly authorized, executed, issued authorized by all necessary or proper corporate and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.governmental action;
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf by Seller and upon receipt of SELLER all necessary or proper corporate and is a governmental action will constitute the valid and binding agreement obligation of SELLER Seller enforceable against it in accordance with its terms, subject and the Lease, when executed by Seller and delivered to (A) bankruptcyPurchaser, insolvencywill have been duly executed and delivered by Seller and will constitute the valid and binding obligation of Seller enforceable against it in accordance with its terms. The execution, fraudulent conveyance, reorganization, moratorium delivery and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery Seller of this Agreement and the consummation of the transactions contemplated by this Agreement do not and Lease will not (a) conflict with with, or result in a any breach by SELLER or violation of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or chartergive rise to any right of termination, cancellation or acceleration) or by-laws of SELLERunder any note, or any indenturebond, mortgage, deed of trust indenture, lease, license, permit, agreement or other material agreement instrument or instrument obligation to which SELLER Seller is a party or by which it Seller is or any of its properties or assets are may be bound, except (1) that the Management Agreement will expire on the Closing Date, and no representation is made that the Tenant Leases, Equipment Leases, Hotel Contracts, Licenses, and Union Contracts (as herein defined) will continue in full force and effect subsequent to the Closing, and (2) as otherwise set forth on the schedule attached to this Agreement, hereby made a part hereof, and marked "Schedule G", or (b) violate any existing applicable law, order, rule, regulation, judgment, order, decree, judgment writ or order injunction applicable to Seller. All consents or approvals by any governmental authorities or governmental persons required in connection with the execution, delivery and performance of this Agreement and the Lease by Seller have been obtained, or will be obtained prior to Closing, and are not subject to revocation, or will not be subject to revocation on the Closing Date;
(iv) Seller has not assigned, mortgaged, pledged, hypothecated or otherwise encumbered the (a) the Real Property, or (b) the Purchased Hotel Assets, and has not consented in writing to any such assignment, mortgage, pledge, hypothecation or other encumbrance by the operator of the Hotel, except for the Tenant Leases, Hotel Contracts, Equipment Leases and other Permitted Exceptions (as hereinafter defined);
(v) To the best of Seller's knowledge, there are no written Equipment Leases in effect as of the date hereof other than those set forth in Schedule "B" attached hereto, true, correct, and complete copies of which will be delivered to Purchaser during the Due Diligence Period, as hereinafter defined, and to the best of Seller's knowledge neither Seller nor the Operator has either given or received written notice of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsdefault with respect to the Equipment Leases which remains uncured;
(vi) No authorizationTo the best of Seller's knowledge, approval or consent of or filing with any federal, state or local governmental body there are no written Hotel Contracts in effect as of the United States is legally required for date hereof other than those set forth in Schedule "C" attached hereto, true, correct, and complete copies of which will be delivered to Purchaser during the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their termsDue Diligence Period, as contemplated by this Agreementhereinafter defined, except and to the filing best of a Form D Seller's knowledge, neither Seller nor the Operator has either given or received written notice of any default with respect to the CommissionHotel Contracts which remains uncured;
(vii) To the best of Seller's knowledge, there are no written Tenant Leases in effect as of the Company's knowledge after reasonable investigationdate hereof other than those set forth in Schedule "D" attached hereto, true, correct, and complete copies of which will be delivered to Purchaser during the information contained in the Company's Annual Report on Form 10K for the year ended December 31Due Diligence Period, 1996as hereinafter defined, Proxy statement relating and to the Annual Meeting best of Shareholders held on June 26Seller's knowledge, 1997 or Quarterly Report on Form 10-Q for neither Seller nor the quarter ended June 30, 1997, as filed Operator has either give nor received written notice of any default with respect to the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under Tenant Leases which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.remains uncured;
(viii) SELLER To the best of Seller's knowledge, there are no union contracts in effect as of the date hereof affecting the employees at the Hotel other than those set forth in Schedule "H" attached hereto (the "Union Contracts") true, correct, and complete copies of which will issue one or more certificates representing be delivered to Purchaser during the Debentures Due Diligence Period, as hereinafter defined;
(ix) To the best of Seller's knowledge, there are no employees involved in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion operation of the Debentures. SELLER further warrants that Hotel as of the Debentures date hereof other than hourly employees covered by the Union Contracts, and those other employees set forth in Schedule "I" attached hereto and made a part hereof (collectively, together with all other employees hereafter engaged by the Shares shall be transferable on Operator at the books and records Hotel in accordance with the terms of SELLER as the Management Agreement, the "Employees"), and to the extent provided best of Seller's knowledge, Schedule "I" accurately sets forth, with respect to each such Employee, his or her name; position; date employed and wages or salary;
(x) To the best of Seller's knowledge, Seller has not received, and Seller has no knowledge of the receipt by the Operator of, any written notice of violation of law or ordinances, orders, licenses, requirements, or regulations of, or agreements with, any Federal, State, County, municipal, or other governmental or quasi-governmental department, agency, or authority relating to the Hotel which remains uncured, or any notices of the presence or release of any hazardous substance (as defined under environmental laws) or of any polychlorinated biphenyls, asbestos, or asbestos containing materials that constitutes a violation of environmental laws which remains uncured, and to the best of Seller's knowledge, neither Seller nor the Operator has received written notice from any such governmental authority of (a) the existence of any liens under any environmental laws, or (b) of the taking of any governmental action that could reasonably be expected to subject the Real Property to any such liens, except as set forth in Schedule "J" attached hereto and made a part hereof; true, correct, and complete copies of any agreements currently in effect between Seller or the Operator and any Federal, State, County, municipal, or other governmental or quasi-governmental department, agency, or authority relating to the Hotel shall be delivered to Purchaser during the Due Diligence Period;
(xi) To the best of Seller's knowledge, there is no litigation or proceeding pending against, and no Notice of Claim as required under Section 7107 of the Unconsolidated Laws of the State of New York has been filed with, Seller relating to Seller in respect of the Hotel and/or the Hotel Assets, and to the best of Seller's knowledge there is no such litigation or proceeding pending against the Operator in respect of the Hotel, and/or the Hotel Assets, which puts at issue the validity of this Agreement, or any action to be taken by Seller pursuant hereto, or which, if determined adversely to Seller, the Hotel Assets, and/or the Operator, with respect to the Hotel, would reasonably be expected, individually or in the Transaction Documentsaggregate, giving effect to current insurance coverage, to materially adversely affect the Hotel Assets, except as set forth in Schedule "K" attached hereto and made a part hereof;
(xii) To the best of Seller's knowledge, Schedule "L" attached hereto and made a part hereof sets forth the insurance maintained by Seller, or by the operator on behalf of Seller, in connection with the Hotel;
(xiii) To the best of Seller's knowledge, Seller has not received any written notice of any taking or threatened taking of all or any portion of the Real Property by condemnation or eminent domain, and Seller has no knowledge of any such notice being received by its operator;
(xiv) To the best of Seller's knowledge, there are no employee benefit plans, including but not limited to "employee benefit plans" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), whether formal or informal, written or unwritten, for any Employee which could result in any liability or obligation to Purchaser, on or after the Closing Date (as hereinafter defined) except for those set forth in Schedule "M" attached hereto and made a part hereof. Seller is not aware of any condition or circumstances under which Purchaser will have any liability or be subject to compliance with Federal any lien under ERISA or the Internal Revenue Code of 1986, as amended, and State securities laws. Nothing in this Section shall affect in the regulations thereunder (the Code"), for any way BUYER'S obligations and agreement employee benefit plan maintained, or required to comply with all applicable securities laws upon resale be contributed to, by any entity, including the current employer of the SecuritiesEmployees, which is under common control or affiliated with the current employer of the Employees within the meaning of Section 4001 of ERISA and the regulations thereunder and/or Section 414 of the Code, except for those plans covering the Employees or former employees at the Hotel and listed on Schedule "M";
(xv) To the best of Seller's knowledge, no fact or condition exists which would prevent or impair Seller's ability to provide to the Real Property the utilities Seller has agreed to provide pursuant to the Lease; and
(xvi) To the best of Seller's knowledge, the Building is structurally sound except as set forth in the schedule attached hereto, hereby made a part of this Agreement and marked Schedule "O", and there are no material defects to the utility, fire, life safety, health and other systems exclusively serving the Hotel, other than those that may be set forth in an engineering survey currently being conducted by Inspection and Valuation International under contract with Xxxxxx X. Xxxxxx & Associates at the request of Seller, it being understood that, unless waived by Purchaser, such engineering survey and the report of Claris Engineering referred to in Paragraph 4(g) of this Agreement shall be received by Purchaser within the Due Diligence Period, as such period may be extended pursuant to the provisions of Paragraph 4(g).
Appears in 1 contract
Seller’s Representations. SELLER Seller represents and warrants to Purchaser the following (the “Seller’s Representations”) as followsof the Effective Date, and, as of the Closing, provided, however, notwithstanding anything contained herein to the contrary, that following the Closing, Purchaser’s remedies in the instance that any of Seller’s Representations are untrue, are limited to those set forth in Section 15.13 below:
(a) Seller is organized, validly existing and in good standing under the laws of the jurisdiction of its formation.
(b) (i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to Seller, acting through any of its duly empowered and authorized officers or members, has or at the Securities offered hereby;
Closing will have the full power and authority to enter into this Agreement, to execute and deliver the documents and instruments required of Seller herein, and to perform its obligations hereunder, and (ii) The Debenturesthe execution, when issued delivery and delivered pursuant to compliance with or fulfillment of the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and conditions hereof will not conflict with with, or result in a breach by SELLER of any of the terms terms, conditions or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it Seller or the Property is otherwise bound.
(c) Subject to and except with respect to the Defeasance of the Defeased Mortgage Loan, Seller has all necessary approvals to execute and deliver this Agreement and perform its obligations hereunder, and no other authorization or approvals of governmental bodies or any of its properties other Person or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact entity will be necessary in order to make enable Seller to enter into or comply with the statements therein, in the light terms of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERthis Agreement.
(viiid) SELLER This Agreement and the other documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will issue one have been duly entered into by Seller, and will constitute legal, valid and binding obligations of Seller.
(e) There are no leases, licenses, occupancy agreements or more certificates representing tenancies for any space at the Debentures Property other than subleases entered into by tenants which Seller is not aware of and those on Schedule 12.1(e), as such Schedule may hereafter be modified in accordance with Section 9.4(c) hereof. Seller has made available to Purchaser true, complete and correct copies of the Leases set forth on such Schedule 12.1(e) with respect to the Shopping Center. Each such Lease (i) constitutes the entire agreement between Seller and the tenant thereunder, (ii) is in full force and effect, and (iii) has not been amended, supplemented or otherwise modified except by any amendment, supplement or modification thereto set forth on Schedule 12.1(e).
(f) Schedule 12.1(f) contains a true, complete and correct list of rent rolls for the Shopping Center as of the date shown thereon (each, a “Rent Roll” and collectively, the “Rent Rolls”) which indicate the amount of fixed rent payable for the then current month, and other matters shown thereon, it being acknowledged by Purchaser that such rent and other matters shown thereon may change in accordance with each tenant’s Lease. Each Rent Roll shall be updated as set forth in Section 4.1(c)(iv).
(g) Schedule 12.1(g) contains true, complete and correct lists, as of the Effective Date (to be updated by Seller as of the Closing), of (x) the Security Deposits (whether in the name form of BUYER cash, letter of credit or otherwise) under the Leases being held by Seller, including whether any such Security Deposit is being held in such denominations the form of a letter of credit, and (in multiples of $25,000y) the prepaid rents under the Leases with respect to be specified by BUYER prior to closing and will issue one the Shopping Center or more certificates representing credits which reduce future rents. Seller has complied with the Shares in such denominations to be specified by Buyer upon conversion terms of the Debentures. SELLER further warrants that Leases and all applicable laws regarding the Debentures handling and the Shares shall be transferable on the books and records application of SELLER as and such Security Deposits.
(h) No pending or, to the extent provided Knowledge of Seller, threatened in writing litigation involving Seller exists which if determined adversely would restrain the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale consummation of the Securitiestransactions contemplated by this Agreement or would declare illegal, invalid or non-binding any of Seller’s obligations or covenants to Purchaser.
(i) Except as set forth on Schedule 12.1(i), (i) Seller has not delivered written notice to any tenants of any tenant default, or received written notices alleging any landlord default under Leases that remain uncured and (ii) Seller has not received a written notice from a tenant under a Lease that such tenant has an offset, counterclaim, or defense to its obligation to pay rent in accordance with the terms of such Lease after the Effective Date.
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to Purchaser the following (collectively, “Seller’s Representations”), as followsof the Effective Date and as of the Closing Date, provided, however, that Purchaser’s remedies in the instance that any of Seller’s Representations are known to be untrue as of the Closing Date, are limited to those set forth in Article XII:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) The Debentures, when issued state of its formation set forth in the initial paragraph of this Agreement and delivered pursuant is duly qualified and in good standing under the laws of the State of Illinois; and has or at the Closing will have the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the terms of this Agreement, Closing will have been duly authorizedtaken as applicable, executed, issued and delivered and will constitute valid and legally binding obligations of all corporate or equivalent entity actions required for the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement Agreement, and the consummation of the transactions contemplated by this Agreement.
(b) Seller has all necessary approvals to execute and deliver this Agreement do not and perform its obligations hereunder, and to Seller’s knowledge, no other authorization or approvals, whether of governmental bodies or otherwise, will be necessary in order to enable Seller to enter into or comply with the terms of this Agreement.
(c) This Agreement and the other documents to be executed by Seller hereunder, upon execution and delivery thereof by Seller, will have been duly entered into by Seller, and will not conflict with constitute legal, valid and binding obligations of Seller. To Seller’s knowledge, neither this Agreement nor anything provided to be done under this Agreement violates or result in a breach by SELLER of shall violate any of the terms or provisions of724643206.7 17544974 contract, or constitute a default underdocument, the certificate of incorporation (or charter) or by-laws of SELLERunderstanding, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it is bound.
(d) The Rent Roll attached hereto as Exhibit B is a complete list of all (i) Leases at the Property, including any and all amendments, renewals and extensions thereof, (ii) all security deposits currently held by Seller, (iii) tenant arrearages as of the date hereof and (iv) unpaid free rent, tenant improvement costs and leasing commissions under the Leases as of the Effective Date. Seller is not in material default of its obligations under any of the Leases, and to Seller’s knowledge, no Tenant is in material default of its obligations under any Lease. As of the date hereof, Seller has not received from any tenant (nor delivered to any tenant) under the Leases written notice of current default under the Leases which default has not been cured. To Seller’s actual knowledge, there are no existing facts or circumstances which with the giving of notice or the passage of time or both would constitute a default under the Leases. The Property Documents include, true, correct and complete copies of all of the Leases listed on Exhibit B, including any amendments or modifications thereof, as well as, to Seller’s knowledge, any subleases relating to the Leases.
(e) Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any zoning ordinance, land use law or building code with respect to the Property, which violation or alleged violation has not been corrected.
(f) Seller has received no written notice from any governmental body or agency of any pending or threatened condemnation proceeding against the Property or any formal notice of condemnation with respect to the Property.
(g) To Seller’s knowledge, Seller has received no written notice from any governmental body or agency of any violation or alleged violation of any applicable law with respect to Hazardous Materials on the Property.
(h) No pending or, to the knowledge of Seller, threatened claims, litigations or proceedings involving Seller or the Property exists.
(i) The list of agreements set forth on Exhibit J attached hereto is a complete list of all service contracts or agreements relating to the operation, maintenance, management or leasing of the Property entered into or assumed by Seller and, subject to Purchaser’s election pursuant to Section 10.4 above, to be assigned to Purchaser at Closing (collectively, the “Service Agreements”). Seller is not in material default of its properties obligations under any Service Agreement, and to Seller’s knowledge, no other party is in material default of its obligations under any Service Agreement.
(j) Seller has not filed or assets are bound, been the subject of any filing of a petition under the Federal Bankruptcy Law or any existing applicable decree, judgment or order of any court, federal or state regulatory bodyinsolvency laws or laws for composition of indebtedness or for the reorganization of debtors.
(k) There are no ongoing capital improvement projects at the Property and there are no funds remaining to be paid by Seller for any capital improvements at the Property. 724643206.7 17544974
(l) Seller has not granted any options or similar rights to purchase the Property or any interest therein (except pursuant to this Agreement), administrative agency and to Seller’s knowledge, non exist. Seller is the owner of the Personal Property and Fixtures and all of the same are being transferred to Purchaser free of all claims, liens and/or encumbrances.
(m) To Seller’s knowledge, (i) all Property Documents delivered to Purchaser or made available to Purchaser are correct and complete copies of such items and Seller has no knowledge of any material inaccuracy or omission in such information. Seller has not deliberately and intentionally withheld from Purchaser any information with respect to the Property which would be materially relevant to any reasonable purchaser’s decision to acquire the Property.
(n) Seller (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <xxxx://xxx.xxxxx.xxx/offices/enforcement/ofac/sdn/t11sdn.pdf> or at any replacement website or other replacement official publication of such list, and (ii) is currently in compliance with and will at all times during the term of this Agreement (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement action relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERthereto.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carter Validus Mission Critical REIT, Inc.)
Seller’s Representations. SELLER represents and warrants as followsSeller hereby makes the following representations to Buyer:
(i) SELLER has a. Seller is not conducted any general solicitation or general advertising (as defined in Regulation D) with respect a party to any other contract, agreement, or commitment to sell, to convey, to assign, to transfer, or otherwise to dispose of any portion or portions of the Securities offered hereby;Property other than this Agreement.
(ii) The Debenturesb. Seller has full right, when issued power and delivered pursuant authority and has taken all requisite action to enter into this Agreement and to sell and convey the Property to Buyer as provided in this Agreement and to carry out its obligation as set forth hereunder.
c. Seller is now, and at the Closing will be, a limited partnership duly organized and validly existing under the laws of the state of its formation and is and will be duly licensed and qualified to do business in the state in which the Property is located.
d. Seller has made available to Buyer true, correct and complete copies of all Leases and other agreements with tenants of the Property, including all amendments thereto and modifications thereof. To the best of Seller's actual knowledge, Seller is not in material default of any of its obligations under the Leases.
e. Seller has or will furnish Buyer with true, correct and complete copies of all Contracts, none of which, to the terms best of this AgreementSeller's knowledge, will are in default.
f. Except for the City Notice, there is no actual litigation pending or, to the best of Seller's knowledge without independent investigation and except as may be disclosed by documents made available to Buyer for review during the Site Analysis Period or otherwise disclosed to or discovered by Buyer through its due diligence, threatened which Seller has actual notice against Seller or the Property that relates to or, if decided adversely, could have been duly authorizeda material adverse effect upon, executedthe Property (including condemnation or similar proceeding).
g. To the best of Seller's knowledge, issued and delivered and will constitute valid and legally binding obligations there are no other existing actions, suits, proceedings, judgments, orders, decrees, defaults, delinquencies or deficiencies pending, outstanding or, to the best of Seller's knowledge, threatened of which Seller has actual notice against the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now Property or hereafter in effect against Seller or relating to creditors' rights its business properties or assets that could affect Seller's ability to carry out its obligations under this Agreement and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may documents to be subject to equitable defenses executed in connection therewith; and to the discretion best of the court before which any proceedings therefor may be brought and (C) Seller's knowledge there are no facts that might reasonably give rise to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawssuch actions, claims, or proceedings.
(iii) h. All Personal Property is located on or at the Property.
i. The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER financial statements with respect to the Shares contained Property supplied to Buyer in SELLER'S Certificate connection with this Agreement, as of Incorporation their respective dates, are to the best of Seller's knowledge, materially true, complete and accurate.
j. To the best of Seller's actual knowledge without independent investigation and except as may be disclosed by documents made available to Buyer for review during the Site Analysis Period or otherwise disclosed to or discovered by Buyer through its due diligence, there are not presently pending, and Seller has received no notice of, any special assessments of any nature with respect to the Property or any agreement part thereof (other than currently outstanding assessments totalling approximately $7,917.00 for paving, sewer and sidewalk improvements which have been disclosed to which SELLER is a party;Buyer (the "Known Assessments")), nor has Seller received any notice of any special assessments being contemplated that would increase the real estate taxes on the Property.
(iv) This Agreement k. All required federal, state, county, and municipal tax returns with respect to Seller and the Property have been filed, and all taxes due thereunder have been or will be paid prior to Closing.
l. To the best of Seller's actual knowledge, Seller has been duly authorizednot placed or stored on the Property any hazardous or toxic chemical, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its termsmaterial, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now substance or hereafter in effect relating to creditors' rights and (B) waste that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be prohibited, limited or regulated by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body authority, and Seller has not knowingly permitted any other person or entity to place or store same on the Property in violation of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) applicable environmental laws. To the best of Seller's actual knowledge without independent investigation and except as otherwise disclosed by environmental reports of the CompanyProperty (copies of which have been provided to Buyer), the Property contains no hazardous or toxic materials except for ordinary cleaning and sanitizing materials which have been used, stored and disposed of in material compliance with applicable laws.
m. No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceeding are pending or, to the best of Seller's knowledge, threatened against Seller, or the Property, and no such proceedings are contemplated by Seller.
n. Any property management contract affecting the Property will be terminated as of the Closing Date.
o. To the best of Seller's actual knowledge after reasonable without independent investigation, there are no material actions, suits, claims and other legal or administrative proceedings affecting the information Property nor has Seller received actual notice of any threatened actions, suits, claims or other legal or administrative proceedings affecting the Property.
p. Seller is not a "foreign person," as that term is used in Section 1445 of the Internal Revenue Code of 1986, as amended.
q. No consent or approval of any third party (including without limitation, any Government) is or was required to execute and deliver this Agreement or consummate this transaction.
r. Upon the signing and delivery of this Agreement, it will be legally binding upon Buyer in accordance with all of its provisions, except as may be limited by bankruptcy, moratorium, insolvency or other laws generally affecting creditors' rights.
s. Seller has no actual knowledge that any portion of the Property or the operation of the Property is in violation or may violate any governmental statute, regulation, ordinance or building code or of any private restriction, that any government authority requires any work to be done on or effecting the Property or that any governmental authority has expressed an intent to condemn or to make special improvements for the benefit of the Property or any part thereof.
t. Seller covenants and agrees that between the date hereof and the date of Closing, Seller shall continue to maintain, operate and manage the Property in a manner consistent with its prior practices, making every reasonable effort to do nothing which might damage the reputation of the Property or the relationships with the Tenants. Seller shall not permit the modification, extension or cancellation of any tenant lease other than in the ordinary course of Seller's business or in accordance with the terms of such lease, or any dealing with any tenant other than in the ordinary course of managing the Property, without the prior written consent of Buyer. If any Lease is expired before thirty (30) days after the date of Closing, Seller shall, up to the date of Closing and without cost to Buyer, continue its normal course of operation with respect to causing tenants to be obtained for apartments which are unrented. All representations of Seller contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 this Agreement or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact document or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) exhibit required to be specified executed by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares Seller pursuant hereto shall be transferable on true at the books Closing as though such representations were made at such time. If any such representation is not true when made and records of SELLER as and at the Closing (except to the extent provided in the Transaction Documentsany such representation, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale although true as of the SecuritiesEffective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Seller's reasonable control), Buyer may consider same as an event of default hereunder and may pursue such remedies as set forth in Paragraph 14 herein. If any representation of Seller herein, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Seller's reasonable control, Buyer may not consider same as an event of default hereunder; but rather, in such case, Buyer may, at Buyer's option and as Buyer's sole and exclusive remedy, terminate this Agreement and have the Binder Deposit refunded by Escrow Agent, whereupon the parties hereto shall have no further rights, obligations or liabilities with respect to each other hereunder, except for the Indemnification Obligations. Further, if Seller acquires knowledge of any fact(s) rendering any of the foregoing representations and warranties false at any time prior to Closing, Seller shall promptly notify Buyer in writing of such fact(s).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cornerstone Realty Income Trust Inc)
Seller’s Representations. SELLER represents (a) The representations and warrants warranties of Seller in this Section 4.1 shall survive the Closing for one (1) year after the Closing Date, at which time such representations and warranties shall terminate.
(b) Seller makes the following representations and warranties to Buyer, each of which shall be true and correct, in all material respects, as followsof the date of this Agreement:
(i) SELLER has not conducted any general solicitation or general advertising (as defined Seller is a corporation duly incorporated and organized and validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
(ii) State of Delaware. Seller has full power and authority to enter into this Agreement and to perform this Agreement. The Debenturesexecution, when issued delivery and delivered pursuant to the terms performance of this Agreement, will Agreement by Seller have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized by all necessary action on the part of Seller and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holdersall required consents or approvals have been duly obtained. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER This Agreement is a party;
(iv) This Agreement has been duly authorizedlegal, validly executed and delivered on behalf of SELLER and is a valid and binding agreement obligation of SELLER Seller, enforceable against Seller in accordance with its terms, subject to (A) the effect of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium and or other similar laws now affecting the rights of creditors generally.
(ii) Seller is not a "foreign person" as defined in section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
(iii) Except for CB Xxxxxxx Xxxxx, Seller has not dealt with any real estate broker or hereafter finder in effect relating connection with the sale of the Property to creditors' Buyer or this Agreement.
(iv) Seller has not granted any purchase rights, rights and (B) that the remedy of specific performance and injunctive and other forms first refusal or rights of equitable relief may be subject to equitable defenses and tenancy with respect to the discretion of the court before which Property to any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsthird party.
(v) The execution and delivery of this Agreement and Except as otherwise provided in the consummation of Due Diligence Materials or in the transactions contemplated Title Report, there are no contracts or obligations concerning the Property agreed to by this Agreement do not and Seller that will not conflict with be binding upon Buyer or result in a breach by SELLER of any of that will otherwise affect the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;Property after Closing.
(vi) No authorizationAt the time of Closing there will be no outstanding written or oral contracts made by Seller for any improvements to the Property, approval or consent the cost of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;which have not been fully paid.
(vii) To Seller's knowledge, and except as otherwise set forth in the best Title Report, Due Diligence Materials or other written information provided to Buyer by Seller, (a) there are no condemnation, environmental, zoning or other land-use regulation proceedings, either instituted or planned to be instituted, that would materially and adversely affect the use, operation or value of the Company's knowledge after reasonable investigation, the information contained Property; and (b) there is no litigation pending or threatened in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light writing against Seller arising out of the circumstance ownership or operation of the Property or that might materially and adversely affect the development, value or use of the Property or the ability of Seller to perform its obligations under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERthis Agreement.
(viii) SELLER will issue one Seller has not engaged in or more certificates representing permitted any activity on the Debentures Property in material violation of any laws, codes or regulations involving the handling, manufacture, treatment, storage, use, release, or disposal of any hazardous materials which has not been cured.
(ix) Except as may be disclosed in the name Due Diligence Materials, to Seller's knowledge, Seller has not received any written notice that the Property is in violation of BUYER in such denominations any applicable laws, codes or regulations.
(in multiples of $25,000x) The Removal Obligation has been completed pursuant to be specified by BUYER all applicable laws, codes and regulations.
(c) Notwithstanding anything contained herein to the contrary, (a) Seller shall have no liability with respect to any representation, warranty or covenant contained herein if, prior to closing the Closing, Buyer has knowledge of any facts or circumstances that make such representation, warranty or covenant untrue or incorrect in any respect, and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion nevertheless consummates its acquisition of the Debentures. SELLER further warrants that the Debentures Property contemplated by this Agreement and the Shares (b) in no event shall be transferable on the books and records of SELLER as and Seller's aggregate liability with respect to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect 4.1, any other breach by Seller of this Agreement or any other document executed and delivered in connection herewith exceed the aggregate sum of Two Hundred Fifty Thousand Dollars ($250,000), excluding any way BUYER'S obligations and agreement indemnity obligation of Seller pursuant to comply with all applicable securities laws upon resale of the Securities.Section 5.1
Appears in 1 contract
Samples: Purchase Agreement (Imation Corp)
Seller’s Representations. SELLER Seller makes the following representations and warranties to Buyer, and Seller expressly acknowledges and agrees of and to Buyer's reliance thereon in entering into this Contract:
a. Seller represents and warrants as follows:
(i) SELLER that it has all requisite right, power, title and authority to enter into this Contract and to comply with the terms hereof, and it is not conducted prohibited nor prevented in any general solicitation manner whatsoever, by any oral or general advertising (as defined in Regulation D) written contract, covenant, restriction, affiliation and/or relationship of any kind whatsoever with respect to any third party, from executing, delivering and/or performing this Contract and/or any of the Securities offered hereby;
(ii) The Debenturesterms hereof, when issued and delivered pursuant Seller has obtained the necessary consent from any and all of all third parties which are required, by virtue of such oral or written contracts, covenants, restrictions, affiliations and/or other relationship, between Seller and such any third parties, to permit the execution, delivery and/or performance this Contract and/or any of the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawshereof.
(iii) The Shares, when issued b. Seller represents and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER warrants that it is a party;
(iv) This Agreement has been corporation duly authorized, validly executed existing and delivered in good standing under the laws of the State of Delaware. Seller represents and warrants that is a foreign corporation duly authorized to do business in the State of New Jersey and is in good standing under the laws thereof. Seller represents and warrants that it has all requisite rights, power and authority to enter into this Contract. Seller further represents and warrants that the corporate officer of Seller, who has signed this Contract on behalf of SELLER Seller, is fully authorized with all requisite corporate action and authority to act on behalf of Seller and to bind Seller to this Contract and the terms hereof.
c. Seller represents and warrants that there are no tenants on, in or occupying the buildings, improvements or other structures located on the Property nor is a valid and binding agreement of SELLER in accordance with its termsthe Property or any building, improvement or structure located thereon subject to (A) bankruptcyany existing lease agreement, insolvencyoral or written. Seller further represents, fraudulent conveyancewarrants and agrees that neither the Property, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER of nor any of the terms buildings, improvements or provisions ofstructures located thereon, or constitute a default under, shall at any time to prior to the certificate of incorporation (or charter) or by-laws of SELLER, or Closing Date be leased to any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a third party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or tenant without the express written consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance Buyer.
d. Seller represents and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To warrants that to the best of its knowledge there are no "hazardous substances" and/or "hazardous wastes" (as such terms are defined by any and all federal and/or New Jersey environmental laws, statues, regulations and/or ordinances) on or at the Company's knowledge after reasonable investigation, Property or affecting the information contained in groundwater under the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating Property. Seller further represents and warrants that to the Annual Meeting best of Shareholders held on June 26its knowledge the Property has never been used as a dump site for public or commercial refuse or as a landfill.
e. Seller represents and warrants that to the best of its knowledge neither the Property, 1997 nor any part or Quarterly Report on Form 10-Q for the quarter ended June 30portion thereof, 1997constitutes and/or is classified as Freshwater Wetlands, as filed with such term is defined by federal and/or New Jersey laws, statutes, regulations and/or ordinances.
f. Seller represent and warrants that to the Commission does not contain any untrue statement best of a material fact or omit to state any material fact necessary in order to make its knowledge all buildings, driveways and other improvements on the statements therein, in Property are within the light boundary lines thereof and no improvement on adjoining properties extend across the boundary lines of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) Property to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesconveyed hereunder.
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to the Buyer, as of the date hereof and as of Closing as follows:
(i) SELLER has not conducted any general solicitation or general advertising (as defined : Seller is a corporation duly organized, validly existing, and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;
State of Delaware. Seller has the requisite corporate authority and power to own, lease, and to convey the Assets and to carry on the Seller’s business as now conducted. This Agreement and any other document executed by Seller in connection herewith constitutes (ii) The Debenturesand the conveyance provided for herein to be delivered at Closing will, when issued executed and delivered pursuant to delivered, constitute) the terms of this Agreementlegal, will have been duly authorizedvalid, executed, issued and delivered and will constitute valid and legally binding obligations of the Company Seller, enforceable in accordance with their terms, subject . Seller has the legal power and right to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium enter into and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of perform this Agreement and the transactions contemplated hereby. The consummation of the transactions contemplated by this Agreement do does not violate or conflict with: any provision of Seller’s corporate bylaws 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, the certificate of incorporation (or charter) or by-laws of SELLERformation, or any indenture, mortgage, deed of trust or other document pursuant to which Seller was formed; any material agreement or instrument to which SELLER Seller is a party or by which it Seller is bound; or any judgment, order, ruling, or decree applicable to Seller or where Seller is a party in interest or any law, rule, or regulation applicable to Seller. Seller has incurred no obligation contingent or otherwise, for any broker’s, finder’s or consultant’s fees for which Buyer will be liable. There is no suit, action, claim, investigation or inquiry by any person or entity or by any administrative agency or governmental authority and no legal, administrative or arbitration proceeding pending or, to Seller’s Knowledge, threatened against Seller or any of its properties or assets are boundaffiliates that has, or will, materially affect Seller’s ability to consummate the transactions contemplated herein. There are no bankruptcy or reorganization proceedings pending or, to Seller’s Knowledge, threatened against Seller. There are no liens for taxes on the Assets, except for taxes not yet due, and there is no unpaid tax due and payable by Seller for which Buyer would become liable by reason of purchasing the Assets hereunder. Seller has filed or will file all federal, state, local, and other tax reports and returns required to be filed by Seller in connection with its ownership of the Assets up through the Effective Date. To Seller’s Knowledge, Seller has not violated any existing applicable decreelaws in any material respect with respect to the ownership or operation of the Assets. Seller owns the Assets. The Assets will be conveyed free and clear of all liens, judgment mortgages and encumbrances created or arising by, through or under Seller. To Seller’s Knowledge, there have been no advanced, take or pay or other prepayments with respect to the Assets that would obligate Seller or Buyer to deliver hydrocarbon production from the Assets after the Closing Date without receiving full payment therefor. To Seller’s Knowledge, there are no production sales contracts pertaining to the Assets that provide for a fixed price and that cannot be cancelled at any time upon 90 days (or less) prior notice. Other than with respect to rights of non-consenting parties under an operating agreement to obtain a reconveyance of their interests upon the satisfaction of applicable non-consent penalties, to Seller’s Knowledge, there are no preferential purchase rights or third party consents to assignment pertaining to Seller’s interest in the Assets or the transaction contemplated hereby, affecting the Assets which obligates Seller, or Buyer after the Closing, to sell any interest in the Assets or to purchase any leasehold interest or other asset. No consent, authorization, order or approval of, or filing or registration of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States kind is legally required for the issuance and sale consummation of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly transactions contemplated hereby by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this AgreementSeller, except the filing as may be necessary as a result of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement any facts or circumstances relating solely to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERBuyer.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations. SELLER Seller represents and warrants as followsto Buyer that:
(ia) SELLER has not conducted Neither Seller nor Tenant is in default in any general solicitation respect under the Lease.
(b) There is no rent prepaid under the Lease for a period of greater than one month.
(c) Except for the Permitted Encumbrances and those items being assigned in Exhibit F hereto, there are no service contracts, licenses, franchise agreements, management agreements or general advertising (as defined in Regulation D) with respect to other contracts or agreements affecting any of the Securities offered hereby;Property which shall extend beyond the Rent Commencement Date that are not terminable at will, without liability.
(iid) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations As of the Company date hereof, Seller has no actual knowledge of any material claims, actions, suits or other proceedings threatened by any partnership, entity or person whomsoever, which in accordance with their termsany manner or to any extent may affect the Property or otherwise detrimentally affect Buyer's right, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now title or hereafter interest in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion Property or the value of the court before which any proceedings therefor Property other than as may be brought and (C) disclosed in writing to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(iiie) The Shares, when issued and delivered upon conversion As of the Debentures in accordance with their termsdate hereof, will be duly and validly authorized and issued, fully-paid and non assessable and will Seller has not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights received any notice of any shareholder violation of SELLER applicable zoning, environmental protection, use and building codes or other regulations and ordinances, administrative and judicial orders or holdings and covenant running with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and land other forms of equitable relief than as may be subject disclosed in writing to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsBuyer.
(vf) The execution and delivery of this Agreement and all documents to be executed by Seller pursuant to this Agreement have been (or shall be prior to the consummation Closing Date) duly authorized.
(g) Sewage, water, telephone, and electrical and gas are available to and will be operating on the Rent Commencement Date at the Real Property.
(h) As of the transactions contemplated by this Agreement 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 underPossession Date, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Building will be completed in accordance with their termsthe Lease (subject to changes approved by Tenant and punchlist items that Seller has undertaken to complete). Seller will have paid in full or provided far full payment of all invoices and fees for labor performed at, and materials, machinery, fixtures and tools delivered to, furnished to or incorporated into the Property except for such property as contemplated is provided by this Agreement, except Tenant under the filing of a Form D with the Commission;
(vii) To the best terms of the Company's knowledge Lease and except for any punchlist items to be completed by Seller after reasonable investigationClosing; Seller shall diligently provide, complete and pay for all punchlist items specified by Tenant on the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLEREstoppel it provides Buyer hereunder.
(viiii) SELLER will issue one Seller is not a foreign person or more certificates representing entity under the Debentures Foreign Investment in Real Property Tax Act of 1980, as amended, and no taxes or withholding required thereunder shall be assessed or applied to Buyer in connection with the transaction contemplated hereby.
(j) Seller has no actual knowledge of any unsecured release, storage or disposal of hazardous substances on the Real Property, except as disclosed in the name of BUYER in such denominations Phase I Environmental Site Assessment prepared by Underground Environmental Services, Inc., dated January 12, 2005 (in multiples of $25,000the "Environmental Report").
(k) to be specified by BUYER prior to closing and will issue one or more certificates representing There are no leases, other than the Shares in such denominations to be specified by Buyer upon conversion Lease, nor tenants, other than Walgreen Co. of the Debentures. SELLER further warrants that Real Property.
(1) Seller is not the Debentures and subject of any insolvency or bankruptcy proceedings at law or in equity or otherwise, the Shares shall be transferable on the books and records result of SELLER as and which might affect title to the extent provided in Property or the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale right of the SecuritiesSeller to transfer and convey the same to Buyer.
Appears in 1 contract
Seller’s Representations. SELLER Seller represents and warrants as follows, except as otherwise disclosed in the Company's Commission Filings:
(i) SELLER The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to carry on its material business as now conducted and as currently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on the business or the properties of the Company and its subsidiaries taken as a whole. The Company is not the subject of any pending or, to its knowledge, threatened or contemplated investigation or administrative or legal proceedings by the Internal Revenue Service, the taxing authorities of any State of local jurisdiction, or the Commission, or any State Securities Commission, or any other governmental entity which could have a material adverse effect in the Company and its subsidiaries taken as a whole.
(ii) Seller has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(iiiii) The DebenturesPreferred, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor therefore may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsbrought.
(iiiiv) The Shares, when issued and delivered upon conversion of the Debentures Preferred, and exercise of the Warrants, in accordance with their termsterms and the terms of this Agreement, will be duly and validly authorized and issued, fully-issued fully paid and non non- assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER or Seller with respect to the Shares contained in SELLER'S Seller's Certificate of Incorporation or any agreement to which SELLER Seller is a party;.
(ivv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER Seller and is a valid and binding agreement of SELLER Seller in accordance with its terms, terms and subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now new or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses deficiencies and to the discretion of the court before which any proceedings therefor thereafter may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsbrought.
(vvi) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER Seller of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERSeller, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER Seller is a party or by which it or any of its properties proprietors or assets agents are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER Seller or any of its it properties or assetsassets the effect of which would have a material adverse effect on the Company and its subsidiaries taken as a whole;
(vivii) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures Preferred and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER Seller for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Preferred in accordance with their terms, as contemplated by this Agreement, ; except the filing of a Form D with the Commission, the listing of the Shares with the BSE and the NASDAQ, and the filing of the Certificate of Designation with the Delaware Secretary of State;
(viiviii) To the best of the Company's knowledge after reasonable investigationknowledge, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report quarterly reports on Form 10-Q for the quarter ended June 30March 31, 19971998 and annual report on Form 10-K for the year ended December 31, 1997 ("Reports"), as filed with the Commission does do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, and in the light of the circumstance circumstances under which they are made, made are not misleading. Since September 30March 31, 19971998, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERSeller except as disclosed in the Reports.
(viiiix) SELLER Seller will issue one or more certificates representing the Debentures Preferred in the name of BUYER Buyer that are purchased by the Buyer pursuant to the terms hereof, in such denominations (in multiples of $25,000) to be specified by BUYER Buyer prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by the Buyer upon conversion of the DebenturesPreferred. SELLER Seller further warrants that the Debentures Preferred and the Shares shall be transferable by the Buyer on the books and records of SELLER Seller as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws.
(x) Within twenty (20) days of the Closing Date the Company shall secure the listing of the Shares issuable on conversion of the 3,000 shares of Preferred purchased by the Buyer under Section 1(ii) and exercise of the Warrants issued to the Buyer hereunder ("Warrant Shares") upon the Nasdaq SmallCap Market or such national securities exchange or automated quotation system, if any, upon which Shares are then listed (subject to official notice of issuance) and shall maintain such listing of all Shares and Warrant Shares from time to time issuable upon conversion or exercise of the Preferred purchased by the Buyer hereunder and the Warrants issued to the Buyer hereunder. Nothing The Company will obtain and maintain the listing and trading of its Shares on the Nasdaq SmallCap Market or other national securities exchange or automated quotation system and will comply in this all respects with the Company's reporting, filing and other obligations under the bylaws or rules of the Nasdaq SmallCap Market or such exchanges, as applicable. The Company shall promptly provide to the Buyer copies of any notices it receives regarding the continued eligibility of the Shares for listing on the Nasdaq SmallCap Market or other principal exchange or quotation system on which the Shares are then listed or traded.
(xi) So long as a Buyer beneficially owns any Preferred or Warrants, the Company shall maintain its corporate existence in good standing under the laws of the jurisdiction in which it is incorporated and, prior to the registration statement referred to in Section 10(a) hereof being declared effective by the Commission, the Company shall affect not sell all or substantially all of the Company's assets, except in any way BUYER'S obligations the event of a sale of all or substantially all of the Company's assets where the holders of such outstanding Preferred shall have the right to convert such Preferred, then outstanding, into the kind and agreement amount of shares of stock or other securities and properly receivable upon such sale by a holder of the number of Shares into which such shares of Preferred, then outstanding, could have been converted into immediately prior to such sale.
(xii) The Company has conducted, and shall conduct its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business (including without limitation, all applicable local, state and federal environmental laws and regulations), except where the failure to comply with all applicable securities laws upon resale of such laws, rules or regulations would not have a material adverse effect on the SecuritiesCompany and its subsidiaries taken as a whole.
Appears in 1 contract
Samples: Private Securities Subscription Agreement (Perma Fix Environmental Services Inc)
Seller’s Representations. SELLER Seller represents and warrants to Purchaser as followsof the Agreement Date that:
(ia) SELLER Seller is the sole legal and beneficial owner of to the Claims and will be the sole owner of the Proceeds when realized, in each case free and clear of any Encumbrances other than the obligations to Purchaser created under this Agreement and the Escrow Agreement.
(b) There are no suits, investigations, or proceedings pending or threatened against Seller that may adversely affect it, the Claims, the Proceeds (when realized), the Transferred Rights or its other assets.
(c) Seller has not conducted received any general solicitation payment or general advertising (as defined distribution of Proceeds or in Regulation D) connection with respect to any of the Securities offered hereby;Claims.
(iid) The DebenturesSeller, when issued and delivered pursuant to the terms knowledge of this AgreementSeller, will have been duly authorizedhas provided to Purchaser true, executedcorrect, issued and delivered complete copies of all material documents and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect other information relating to creditors' rights the Claims; provided, however, that Seller has not provided such documents and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) information to the extent that the indemnification provisions contained such disclosure would reasonably be expected to result in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Sharesloss of protection under the attorney-client privilege, when issued and delivered upon conversion of the Debentures in accordance with their termsattorney work product doctrine or similar protection or such information was, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect prior to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorizeddate hereof, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, explicitly made subject to any “Attorney’s Eyes Only” designation or other confidentiality obligation (A) bankruptcy“Excluded Information”). Even without the Excluded Information, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion knowledge of Seller, Seller has provided Purchaser with sufficient information to evaluate [ꞏ] the court before which any proceedings therefor may be brought and (C) to the extent Claims. Xxxxxx believes that the indemnification provisions contained Xxxxxx will prevail in the Registration Rights Agreement may be limited Claims. The documents and information delivered by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated Seller to Purchaser that constitute statements by this Agreement Seller 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement by Seller of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, made by Seller therein not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiie) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) Before and after giving effect to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject Seller is solvent and has the economic capability to compliance with Federal perform its obligations under the Transaction Documents.
(f) (i) Seller has no Indebtedness outstanding relating to the Proceeds or the Claims other than Indebtedness the material terms of which have been disclosed in writing to Purchaser and State securities laws. Nothing (ii) Seller is not in this Section shall affect in default under the documents governing such Indebtedness.
(g) Except for the Transaction Documents and the Attorney Representation Agreements (including Seller's previous counsel), Seller has not entered into any way BUYER'S obligations and agreement assignment, financing, or other investment arrangement relating to comply with all applicable securities laws upon resale the Claims, the Proceeds, or the Transferred Rights.
(h) Seller has sole control of the SecuritiesClaims and any settlement decisions related thereto and will not delegate such control to any Entity.
(i) Purchaser has not provided Seller with any legal, tax, or investment advice regarding selling the Transferred Rights or entering into the Transaction Documents or the Attorney Representation Agreements. Seller is capable of evaluating and understanding the terms, risks, and conditions of the transactions contemplated by the Transaction Documents and the Attorney Representation Agreements.
(j) Seller brought and continues to pursue the Claims in the exercise of its independent judgment in consultation with its counsel. Purchaser has not prompted or encouraged initiation of any Claims, and, regardless of the existence of this Agreement, Seller would have brought and would continue to pursue the Claims.
Appears in 1 contract
Samples: Prepaid Forward Purchase Agreement (Parkervision Inc)
Seller’s Representations. SELLER Seller represents and warrants to Buyer as follows------------------------ of the date hereof that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Seller is a corporation duly organized, validly existing and in Regulation D) with respect good standing under the laws of the State of Delaware, and Seller is duly qualified pursuant to any of and all applicable laws, statutes and regulations to own and operate the Securities offered herebyAssets;
(iib) The DebenturesSeller has all requisite power and authority to carry on its business as presently conducted, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of 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. Subject to Sections 8.1, 8.2, 18.1 and 18.2, the consummation of the transactions contemplated by this Agreement do not and will not violate, nor be in conflict with or result in a breach by SELLER with, any provision of any of the terms or provisions ofSeller's charter, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or governing documents or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER it is a party or by which it or any of its properties or assets are is bound, or any existing applicable judgment, decree, judgment order, statute, rule or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsregulation applicable to Seller;
(vic) No authorizationThe execution, approval or consent delivery and performance of or filing with any federalthis Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite corporate action on the part of Seller;
(d) This Agreement constitutes, state or local governmental body and all documents and instruments required hereunder to be executed and delivered by Seller at Closing will constitute, legal, valid and binding obligations of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller in accordance with their respective terms, as subject to applicable bankruptcy and other similar laws of general application with respect to creditors;
(e) There are no bankruptcy, reorganization or arrangement proceedings pending, being contemplated by, or to the actual knowledge of the officers of Seller, threatened against Seller;
(f) No broker or finder has acted for or on behalf of Seller in connection with this Agreement or the transactions contemplated by this Agreement, except the filing and no broker or finder is entitled to any brokerage or finder's fee or commission in respect thereof based in any way on agreements, arrangements or understandings made by or on behalf of a Form D with the CommissionSeller;
(viig) Except as shown on Exhibit "E" hereto, there is no demand or suit, action or other proceeding pending in which Seller has been served with process, or to Seller's knowledge threatened, before any court or governmental agency which if adversely decided could reasonably be expected to have an adverse impact on the ability to close the transaction contemplated by this Agreement or to result in a material impairment or loss of title to any material part of the Assets taken as a whole or the value thereof taken as a whole or which might materially hinder or impede the operation of the Assets taken as a whole;
(h) Except as shown on Exhibit "E" and as may be referred to in Article XIV, Seller, to its knowledge, has not violated, and to Seller's knowledge there are no alleged violations by Seller of, any applicable rules, regulations or orders of any governmental agency having jurisdiction over the Assets which would affect in any material respect the ownership, operation, use or value of the Assets individually or collectively;
(i) Seller is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended;
(j) To the best of Seller's knowledge, Seller is not in and has received no notice of any default under, and no condition exists that with notice or lapse of time or both would constitute a default under, any statute, writ, injunction, order, judgment or decree of any Governmental Authority or any agreement, contract, lease, license or other instrument, which default or potential default might reasonably be expected to have a material adverse effect on the CompanyAssets, their ownership, operation or value; (k) To the best of Seller's knowledge after reasonable investigationknowledge, all xxxxx located on the information contained Assets have been drilled and operated, and all products sold in conformity with applicable Federal, State and local laws or regulatory provisions and Seller has not been notified of and is not aware of any possible violations thereof which might reasonably be expected to have a material adverse effect on the CompanyAssets. To the best of its knowledge, Seller has complied in all material respects with all applicable laws and with all rules, regulations and orders of governmental agencies while operating the Assets and has obtained all material permits and governmental licenses and other material authorizations legally required to own and operate the Assets;
(l) To the best of Seller's Annual Report on Form 10K for the year ended December 31knowledge, 1996all ad valorem, Proxy statement property, production, severance, income, franchise, sales, use or any other type of assessment or levy ("Taxes") relating to the Annual Meeting Assets which are payable by and billed to Seller through the Effective Time and the Closing have been properly paid, and there are no tax liens upon, pending against, or, to the knowledge of Shareholders held on June 26Seller, 1997 threatened against any Asset sold or Quarterly Report on Form 10-Q to be sold pursuant to this Agreement, except for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary those set forth in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there Exhibit "L"; (m) There has been no material adverse development change in: (i) the business or financial condition of Seller or (ii) the Assets, taken as a whole, and, to Seller's knowledge, no event has occurred or circumstances arisen which is reasonably expected to give rise to such a change. There is no fact known to Seller that has specific application to Seller or the Assets (other than general economic or industry conditions) which could have a material adverse effect on the Assets, their ownership, value or operation after the Effective Time that has not been set forth in this Agreement; (n) Except for those obligations set forth in Exhibit "G", there are no obligations or liabilities under outstanding authorities for expenditure or similar authorization to pay costs or expenses for drilling, completing, equipping, deepening, side tracking, reworking, plugging and abandonment or other material costs or expenses with respect to the ownership of the Assets, nor are there any obligations or commitments presently existing under which Seller's interest in the businessAssets will be altered due to the passage of time, propertiesthe collection of a specified sum of money (including, operationsfor example, financial non-consent operations or back-in obligations) or other reason, except for those interests in the Assets specifically identified on Exhibit "A" as being "BPO" and "APO" and those obligations under AHC Agreement Nos. 5884, 6671, 6696, 6710, 6741 and 6742 as identified on Exhibit "K"; (o) To the best of Seller's knowledge, the condition, use and operation of the Assets complies with all Environmental Laws in all material respects and, to the best of Seller's knowledge, after due inquiry, there presently exists no condition which may subject the owner of the Assets to potential liability, whether arising from such condition now or results in the future, under any Environmental Law currently in effect; (p) Except as shown on Exhibit "H": (i) none of operations the Assets are subject to any contract or agreement providing for recoupment of SELLER.sums paid in respect of take or pay gas purchase contracts or other similar provision such that the owner of the Assets will not receive the full amount of revenue from the sale of production attributable to the ownership interest therein and (ii) there exists no imbalance regarding production taken or marketed from the Assets or any portion thereof which could result in (1) a portion of Seller's interest in production therefrom to be taken or delivered after the Closing without Buyer receiving payment therefor and at the price it would have received absent such imbalance; (2) Buyer, after Closing, being obligated to make payment to any person or entity as a result of such imbalance; or (3) production being shut-in or curtailed after Closing due to non-compliance with allowables, production quotas, proration rules or similar orders or regulations of any governmental authorities; (q) There are no material contracts, agreements or instruments affecting the Assets, the transfer of which is restricted by third party agreement or applicable law. There are no material permits and other appurtenances affecting the Assets, the transfer of which is restricted by third party agreements or applicable law; (r) To Seller's knowledge, except as reflected on Exhibit "C", the Assets are not subject to any agreements containing preferential purchase rights or consent to assignment provisions that must be complied with prior to the assignments of the Assets to Buyer;
(viiis) SELLER will issue one or more certificates representing the Debentures To Seller's knowledge (i) Seller is not in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion material default under any of the Debentures. SELLER further warrants terms and provisions of the oil, gas and mineral leases that comprise the Debentures Assets or under any agreement to which the same are subject; and (ii) all royalties, rentals, and other payments due thereunder by Seller have been timely and properly paid in full on or before the Shares shall be transferable due dates thereof; (t) No amount of Seller's Hydrocarbons produced from the properties and marketed by others is subject to a sales, transportation or processing contract (except for those contracts identified in Exhibit "J" and except for contracts terminable without penalty by Seller on the books and records of SELLER as and not more than 30 days notice), no person has any call upon, option to purchase or similar rights under any agreements with respect to the extent provided Assets or the production therefrom. Seller has not in any respect collected, nor will Seller in any respect collect, any proceeds from the Transaction Documents, sale of Hydrocarbons produced from the Assets that are subject to compliance refund by Buyer; (u) To Seller's knowledge, the only unrecorded agreements materially affecting the Assets are identified on Exhibit "K" hereto ("Contracts"), and Seller is not in material breach or default with Federal respect to any of its obligations under any Contract; and State securities laws(v) Except as to the Assets covered by AHC Agreement No. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale 6710 as specified on Exhibit "K", none of the SecuritiesAssets are subject to any tax partnership.
Appears in 1 contract
Seller’s Representations. SELLER The Seller hereby represents and warrants as followsto and in favor of the Purchaser that:
(ia) SELLER the Seller is a limited liability company organized under the laws of the State of Arizona and has the necessary authority, power and capacity to own the Hotel Assets and carry on the Hotel Business, as presently conducted, enter into this Agreement and the documents and transactions contemplated herein and to complete the Transaction on the terms and conditions herein contained;
(b) this Agreement and the obligations of the Seller hereunder, and the documents and transactions contemplated herein, have been duly and validly authorized by all requisite corporate proceedings and constitute, and will constitute at Closing (or, in the case of Closing Documents, will constitute when executed and delivered) legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with its and their terms; and neither the entering into and delivery of this Agreement nor the completion by the Seller of the Transaction will conflict with or constitute a default under any Applicable Laws;
(c) except as has been disclosed to the Purchaser, to the best of Seller’s knowledge, the Seller has not conducted received written notice of any general solicitation pending condemnation proceedings, or general advertising written notice of changes concerning zoning or variances that would render the Hotel Business illegal or nonconforming with Applicable Laws;
(as defined in Regulation Dd) the Seller is not a party to any collective agreement with respect to any of the Securities offered herebyits Employees;
(iie) The Debentureson the Date of Closing, when issued the Seller will be the sole legal and delivered pursuant beneficial owner of the Hotel Assets, free and clear of all Encumbrances except for the Permitted Encumbrances (including the equipment leases scheduled in Schedule ”1” to the terms Schedule ”E” of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws).
(iiif) The SharesTo the best of Seller’s knowledge, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated by this Agreement hereby (i) do not and will not conflict with violate any judgment, order, injunction, decree, regulation or ruling of any court or Government Authority actually known to Seller, or (ii) result in a breach by SELLER of any of the terms or provisions of, or constitute a default underunder the organizational documents of Seller, the certificate any note or other evidence of incorporation (or charter) or by-laws of SELLERindebtedness, or any indenture, mortgage, deed of trust or indenture, or any lease or other material agreement or instrument known to which SELLER is a party or Seller by which it or any of its properties or assets are Seller is bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;.
(vig) No authorization, approval Seller is not a “foreign person” or consent “foreign corporation” as those terms are defined in the Internal Revenue Code of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms1960, as contemplated by this Agreementamended, except and the filing of a Form D with the Commission;regulations promulgated thereunder.
(viih) To the best of the Company's knowledge after reasonable investigationSeller’s knowledge, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of Schedule G contains a material fact or omit to state any material fact necessary in order to make the statements therein, in the light complete list of the circumstance under which they Room Reservations as of the Execution Date. There are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERoral Room Reservations.
(viiii) SELLER will issue one Except as set forth on Schedule H, to the best of Seller’s knowledge, there are no actions, suits, arbitrations, governmental investigations or more certificates representing other proceedings pending and served against Seller or the Debentures in Property before any court or Governmental Authority, which (i) are not adequately covered by existing insurance or (ii) if adversely determined, would adversely affect the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion value of the Debentures. SELLER further warrants that Property, the Debentures continued operations thereof, or Seller’s ability to consummate the transaction contemplated hereby.
(j) To the best of Seller’s knowledge, Schedule I contains a complete list of all Employees as of the Execution Date.
(k) To the best of Seller’s knowledge, Seller has not received written notice from any city, county, state, or other Governmental Authority of any violation of any statute, ordinance, regulation or administrative or judicial order with respect to the Property, including those relating to environmental matters, which violation has not been corrected.
(l) To the best of Seller’s knowledge, Seller has all permits, licenses, approvals, certificates and other governmental authorizations and registration necessary to conduct its businesses at the Shares shall be transferable Property as presently conducted, including, without limitation, an appropriate license issued by the State of Arizona for the sale of alcohol on the books Property.
(m) To the best of Seller’s knowledge, The list of and records of SELLER as and information with respect to the extent provided Hotel Contracts in Schedule E is true and complete. To Seller’s knowledge, there is no material default, or event that with notice or lapse of time or both would constitute a material default, by any party to any Hotel Contract listed on Schedule E. Seller has received no notice that any party to any Hotel Contract listed on Schedule E intends to cancel or terminate such agreement.
(n) There are no Leases existing as of the Transaction DocumentsExecution Date. There are no leasing commissions due nor will any become due in connection with any previously expired or terminated Lease, and no understanding or agreement exists in regard to payment of any leasing commissions or fees for future Leases.
(o) The insurance policies presently in effect with respect to the Property are as set forth in Schedule J annexed hereto and made a part hereof (the “Existing Insurance”).
(p) To the best of Seller’s knowledge, the financial information as to the Hotel delivered to Purchaser in connection with this Agreement is true and complete in every material respect.
(q) All Hotel FFE, other than that which is subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale an equipment lease which is one of the SecuritiesHotel Contracts, is owned by Seller free of lien or encumbrance, other than mortgage financing which will be satisfied on or before Closing.
(r) The Patio Lease is in full force and effect, it has not been amended and Seller is not in default thereunder, Seller has received no notice of default or termination from the lessor under the Patio Lease and, to Seller’s knowledge, there exists no condition, which, with the passage of time or the giving of notice, or both, would constitute an event of default by the Seller under the Patio Lease.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Morgans Hotel Group Co.)
Seller’s Representations. SELLER Seller represents and warrants as followsagrees to and with Buyer that:
(ia) SELLER As of the Closing, the Leases are in full force and effect, and Seller has or will have as of the Closing fully complied with all of the terms and provisions thereof which it is obligated to perform for all periods up to the Closing. Seller shall own or otherwise have the right to assign and convey or cause to be assigned and conveyed the Leases, all of which shall be free and clear of any liens and encumbrances and provide for a 100% working interest and a net revenue interest of not conducted any general solicitation less than set out on Exhibit “A”.
(b) There is no litigation or general advertising (as defined in Regulation D) with respect government investigation or proceeding pending or, to the knowledge of Seller, threatened affecting the Leases or which would have the effect of restraining or prohibiting any of the Securities offered hereby;transactions contemplated by this Agreement.
(iic) The DebenturesThis Agreement constitutes the valid and binding agreement of Seller in accordance with its terms, when issued and delivered pursuant all instruments required hereunder to be executed by Seller at the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will Closing shall constitute valid and legally binding obligations agreements of the Company Seller in accordance with their terms. The execution, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium delivery and similar laws now or hereafter in effect relating to creditors' rights performance of this Agreement and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be transactions contemplated hereby have been duly and validly authorized and issued, fully-paid and non assessable and will not subject by all requisite action on the holders thereof to personal liability by reason part of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a partySeller;
(ivd) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER by Seller and is a valid all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and binding agreement of SELLER delivered by Seller;
(e) Seller has incurred no liability, contingent or otherwise, for brokers’ or finders’ fees in accordance with its termsrespect to this transaction for which Buyer shall have any responsibility whatsoever; and
(f) Seller shall not enter into any new agreements or commitments or incur, subject or agree to incur, any contractual obligation or liability (Aabsolute or contingent) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now affecting or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any of the court before Leases which any proceedings therefor may be brought and (C) to extend beyond the extent that the indemnification provisions contained Closing except in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and connection with the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS PURCHASE AND SALE IS ON AN “AS IS” BASIS, AND SELLERS MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF TITLE QUANTITY, QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, SAFETY OF EQUIPMENT, COMPLIANCE WITH GOVERNMENTAL REGULATIONS OR OTHERWISE. Sellers represent and warrant that there is no pending litigation affecting the Leases and Equipment, nor is there any unresolved claims regarding salt water contamination of the fresh water aquifer underlying the leases. Each Seller also represents and warrants as follows:
(i) SELLER that it has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect the authority to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of execute this Agreement and the consummation Assignment and Bill of Sale provided for herein. Subject to the provisions hereinafter provided, Xxxxx specifically assumes the risk of description, title (other than the special warranty provided for hereinabove) and the condition of the transactions contemplated Assets and shall inspect the Leases and the Equipment prior to the Closing Date. Such inspection shall cover, but not be limited to, the physical and environmental condition, both surface and subsurface, of the Leases and Equipment. Sellers agree Buyer shall have access during normal business hours to the Assets for the purpose of inspecting and evaluating the condition and/or quality thereof. Upon request and until the day of closing, Sellers shall make available for examination by this Agreement do not Buyer such title information, operating agreements, well files, geologic data, and environmental information as may currently exist. Existing abstracts and title opinions will not conflict with or be brought down to date by Xxxxxxx. NO WARRANTY OF ANY KIND IS MADE BY SELLERS AS TO THE INFORMATION SO SUPPLIED and Buyer agrees that any conclusions made therefrom shall be the result in a breach by SELLER of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance own independent review and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERjudgment.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations. SELLER Seller represents and warrants that as followsof the date hereof:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any Seller is, and at the Closing shall be, a limited partnership formed under the laws of the Securities offered hereby;
(ii) The DebenturesState of Delaware. Seller has the right, when issued power and delivered pursuant authority to make and perform its obligations under this Contract without the terms of this Agreementneed for governmental approval, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now consent or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsfiling.
(iiib) The Sharesexecution, when issued delivery and delivered upon conversion performance of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER this Contract in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by SELLER violate the limited partnership agreement of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLERSeller, or any indenturecontract, mortgageagreement, deed of trust commitment, order, judgment or other material agreement or instrument decree to which SELLER Seller is a party or by which it or any of its properties or assets are is bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;.
(vic) No authorizationSeller has the right, approval or consent power and authority to make and perform its obligations under this Contract.
(d) This Contract is a valid and binding obligation of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures Seller enforceable against Seller in accordance with their its terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viiie) SELLER Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
(f) The tenants listed on Schedule C annexed hereto are tenants under leases (such leases are herein called the “Existing Space Leases” and the lessees thereunder are herein called the “Existing Space Tenants”), true, correct and complete copies of which have been delivered or made available to Purchaser, which constitute the only leases, licenses or other written agreements for the use or occupancy of the Premises to which Seller is a party and which will issue one or more certificates representing be binding on Purchaser following the Debentures Closing, except as may otherwise be set forth in the name Permitted Exceptions.
(g) The information on the rent roll attached hereto as Schedule C is true and correct in all material respects.
(h) Except as may be set forth in its Space Lease or Schedule C, no Existing Space Tenant has made payments to Seller in advance for more than one (1) month (exclusive of BUYER security deposits), or if such payments have been made to Seller more than one (1) month in advance (exclusive of security deposits), Seller will credit Purchaser such denominations amounts at Closing.
(i) Set forth on Schedule D is a true, correct and complete list of the material service contracts (the “Service Contracts”) which may be binding on Purchaser or the Property after the Closing. Seller does not guarantee or undertake that any of the Service Contracts will be in multiples effect as of $25,000) the Closing. Seller reserves the right to be specified by BUYER modify, terminate or enter into new Service Contracts prior to closing and will issue one Closing provided such new service contracts are terminable on not more than thirty (30) days prior notice without payment of any premium or more certificates representing penalty (unless Seller agrees to pay the Shares premium or penalty). Notwithstanding anything contained herein to the contrary, Purchaser shall notify Seller in such denominations writing prior to be specified by Buyer upon conversion the expiration of Purchaser’s Review Period which, if any, of the DebenturesService Contracts Purchaser does not wish to assume at Closing and Seller shall terminate, prior to the Closing Date, those Service Contracts specified in Purchaser’s notice, except Seller shall have no obligation to terminate, and Purchaser hereby agrees to accept and assume in accordance with Exhibit 3 all Service Contracts (including those specified in Purchaser’s notice) which cannot be terminated by Seller (i) without cause, (ii) upon less than thirty (30) days’ notice, or (iii) without payment of a premium or penalty. SELLER further warrants that Purchaser’s failure to timely deliver notice pursuant to the Debentures and the Shares preceding sentence shall be transferable on the books deemed Purchaser’s election to accept and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with assume all applicable securities laws upon resale of the SecuritiesService Contracts in accordance with Exhibit 3.
(j) There are no persons employed by Seller at the Premises in connection with the operation or maintenance of the Premises who will be binding upon Purchaser after the Closing.
(k) Except for that certain Notice of Lease Default letter dated February 10, 2014 from Seller to Pxxxx Brothers Store #1863, a copy of which has been provided to Purchaser, Seller has not sent or received any written notice of default under the REAs within the past twelve (12) months that has not been cured or waived.
(l) Seller has not received any written notice of any pending condemnation proceeding against the Premises or any portion thereof.
Appears in 1 contract
Samples: Contract of Sale (American Realty Capital - Retail Centers of America, Inc.)
Seller’s Representations. SELLER represents and warrants as follows:
(i) SELLER has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms For purposes of this Agreement, will have been the term, “Seller’s Knowledge,” means the actual knowledge of the officers and employees of Seller whose names, positions and contact information are listed on Schedule 7 hereto, without any of such officers and employees having made any special inquiry into the facts for purposes of making the representations set forth in this Paragraph 7, and without any of such officers and employees having had any duty to make any such inquiry. Subject to the foregoing provisions of this Paragraph 7, Seller represents and warrants to Buyer that, as of the date hereof and as of the Closing Date:
a. Petrohawk Energy Corporation is a duly authorizedorganized corporation validly existing and in good standing under the laws of the State of Delaware and Petrohawk Properties, executedLP is a duly organized limited partnership and validly existing and in good standing under the laws of the State of Texas. Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, issued as amended . Seller has all requisite power and authority to carry on its business as 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. This Agreement, and all documents and instruments required hereunder to be executed and delivered and will by Seller at Closing, constitute legal, valid and legally binding obligations of the Company Seller enforceable in accordance with their respective terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium applicable bankruptcy and other similar laws now or hereafter in effect relating of general application with respect to creditors' rights creditors and (B) that the remedy of specific performance and injunctive and other forms of general equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsprinciples.
(iii) b. The Sharesexecution, when issued delivery and delivered upon conversion performance of this Agreement and the Debentures in accordance with their terms, will transaction contemplated hereunder have been and shall be duly and validly authorized and issuedby all requisite authorizing action, fully-paid and non assessable and will not subject corporate, partnership, limited liability company or otherwise, on the holders thereof to personal liability by reason part of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsSeller.
(v) c. The execution execution, delivery and delivery performance of this Agreement and the other documents and agreements contemplated hereby do not and will not (i) violate, conflict with or result in the breach of the certificate of incorporation or bylaws of the Seller, (ii) conflict with or violate any Governmental Order or any Law applicable to the Seller or the Properties or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, acceleration or cancellation of, any note, bond, mortgage or indenture to which the Seller is a party, except, in the case of clauses (ii) and (iii), as would not (1) materially and adversely affect the ability of the Seller to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement and the other documents and agreements contemplated hereby or (2) otherwise have a Material Adverse Effect on any of the Properties.
d. Except as set forth in Schedule 7.d) (those items described on such schedule are herein called the “Existing Claims”), (i) to Seller’s Knowledge as of the date hereof there are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by or, to Seller’s Knowledge, threatened against Seller or any action by or against the Seller or the Properties pending before any Governmental Authority, and (ii) to Seller’s Knowledge, there is no Action threatened by or against Seller relating to the Properties or against the Properties, except as would neither (1) materially and adversely affect the ability of Seller to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement and the other documents and agreements contemplated hereby, nor (2) otherwise have a Material Adverse Effect on the value, use or operation of any of the Properties.
e. Except as disclosed in Schedule 7.e), as of the Effective Date, there were no outstanding AFEs or other capital commitments to third parties that were binding on the Properties and that could reasonably be expected to require expenditures by Seller in excess of $50,000. To the extent that any of the AFE’s set out on Schedule 7.e represent AFE’s for Hurricane Losses, as defined in Paragraph 22.d, the underlying insurance claims for such items shall be assigned to Buyer at Closing. Seller maintains insurance policies that contain coverage of a type that is normal and customary for properties located in the Gulf of Mexico in the oil and gas industry.
f. All proceeds from the sale of Hydrocarbons attributable to Seller’s net revenue interest in the Properties as set forth on Exhibit A-1 have been and are currently being paid in full to the Seller (after Tax withholdings and similar deductions authorized by the terms of the Assigned Contracts or applicable Law), with the exception of certain prior temporary interruptions or suspenses of revenues (exclusive of matters resulting in Claims) that have been resolved and are no longer in effect. Further, other than as set forth on Schedule 7.f), the Seller is not obligated by virtue of a take or pay payment, advance payment or other similar payment (other than royalties, overriding royalties and similar arrangements reflected in the net revenue interest figures set forth on Exhibit A-1), to deliver Hydrocarbons attributable to the Properties at some future time without receiving full payment therefore at or after the time of delivery.
g. To Seller’s Knowledge, Schedule 7.g) sets forth all of the Seller’s oil and gas imbalances, including wellhead, platform, pipeline, and processing plant imbalances and penalties as of the Effective Date arising with respect to the Properties.
h. Except as set forth on Schedule 7.h), none of the Properties, or any portion thereof, is subject to (1) any Preferential Rights which may be applicable to the transactions contemplated by this Agreement, or (2) consents, approvals of assignments, or other restrictions on assignment, including but not limited to, requirements for consents from third parties to any assignment that would be applicable in connection with the transfer of the Properties or the consummation of the transaction contemplated by this Agreement by Seller, except consents and approvals of assignment by Governmental Authorities that are customarily obtained after closing.
i. There are no brokerage, finder’s or other fees or commissions in connection with the transactions contemplated by this Agreement do made by or on behalf of the Seller for which Buyer will have any liability or obligation.
j. Except as set forth on Schedule 7.j), to best of Seller’s Knowledge, there are no defaults under the Assigned Contracts by Seller or by any other party to such Assigned Contracts, and no event has occurred that with notice or lapse of time or both would constitute any default under any such Assigned Contract by Seller, or to best of Seller’s Knowledge, any other party to such Assigned Contract except in each case where such default would not constitute a Material Adverse Effect. Prior to the execution of this Agreement, Seller has made or will make available to Buyer copies of each Assigned Contract and will all amendments thereto.
k. Except as set forth on Schedule 7.k), to best of Seller’s Knowledge, Seller has not conflict violated any applicable laws, with respect to the ownership and operation of the Properties, except where such violations would not constitute a Material Adverse Effect.
l. Except as set forth on Schedule 7.l) and except as would not constitute a Material Adverse Effect, Seller has paid all royalties, overriding royalties and other burdens on production due by Seller with respect to the Properties, nor if not paid, is contesting such royalties or result other burdens in a breach good faith in the normal course of business.
m. During the period of Seller’s ownership of the Properties, all ad valorem, property, production, severance, and similar taxes and assessments (including penalties and interest) based on or measured by SELLER the ownership of the Properties, the production of Hydrocarbons, or the receipt of proceeds therefrom that have become due and payable before the Effective Date have been properly paid, other than taxes which have been contested in good faith.
n. With respect to the Properties, Seller has not entered into, or to Seller’s Knowledge, is not subject to, any agreements, consents, orders, decrees, judgments, license or permit conditions, or other directives of any Governmental Authority in existence as of the date of this Agreement based on any environmental laws that relate to the future use of any of the Properties and that require any change in the present conditions of any of the Properties. Seller has not received written notice from any person of any release, disposal, event, condition, circumstance, activity, practice or incident concerning any land, facility, asset or property included in the Properties that: (i) interferes with or prevents compliance by Seller with any environmental law or the terms of any license or provisions of, permit issued pursuant thereto; or constitute a default under, the certificate of incorporation (ii) gives rise to or charter) or by-laws of SELLER, or results in any indenture, mortgage, deed of trust common law or other material agreement or instrument liability of Seller to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinperson which, in the light case of either clause (i) or (ii) hereof, would constitute a Material Adverse Effect. To Seller’s Knowledge, all material reports, studies, written notices from environmental Governmental Authorities, tests, analyses, and other documents specifically addressing environmental matters related to Seller’s ownership or operation of the circumstance under Properties, which they are madein Seller’s possession, not misleading. Since September 30, 1997, there has have been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERmade available to Buyer.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Petrohawk Energy Corp)
Seller’s Representations. SELLER As of the date of this Agreement and as of any Payment Date hereunder, Seller represents and warrants as followsthat:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined it is a corporation duly organized, validly existing and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;State of New York and Seller has all requisite power and authority to own its properties and to carry on its business as now being conducted and is duly qualified and in good standing as a foreign corporation, and authorized to do business, under the laws of each jurisdiction where the character of the properties owned or leased by Seller or the transaction of its business makes such qualification or authorization necessary or appropriate, and Seller holds a valid license issued by the Superintendent of Banks of the State of New York authorizing Seller to engage in the business of a premium finance agency and Seller holds all other licenses, approvals and permits necessary to conduct its business; and
(iib) The Debenturesit has full power, when issued authority and delivered pursuant legal right to execute, deliver and perform this Agreement and all related documents, and ~o consummate the terms of this Agreementtransactions contemplated hereunder and the execution, will delivery and performance hereof have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited authorized by applicable laws.all necessary corporate action; and
(iiic) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This this Agreement has been duly authorized, validly executed and delivered on behalf of SELLER by it and is a constitutes its legal, valid and binding agreement of SELLER obligation, enforceable in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.; and
(vd) The execution the execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated by this Agreement (i) do not and will not conflict with require any stockholder approval or result in a breach by SELLER of any of the terms approval or provisions consent of, or constitute a default underfiling or registration with, the certificate of incorporation (any governmental body or charter) regulatory authority or by-laws of SELLER, agency or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of any trustee or filing with holders of its indebtedness or obligations, and (ii) do not contravene any federallaw, state regulation, order, decision, decree or local governmental body judgment applicable to it or its charter or by-laws; and
(e) as of the United States Payment Date of any Paper, Seller has no reason to believe that any financial or credit information regarding Seller or any Obligor, or any delinquency report regarding the Paper, which has been furnished to the Bank, is legally required for untrue, incorrect or misleading or fails to state additional information necessary to make such information not untrue, incorrect or misleading; and since the issuance and sale end of the Debentures and (last fiscal quarter for which Seller's financial information has been provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997Bank, there has been no material adverse development change in its financial condition or operations; and
(f) Seller is not in default with respect to any order, writ, injunction or decree of any court, or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or authority, or in violation of any law, statute or regulation to which it, or any of its property, is subject, except for such defaults or violations which, in the aggregate, will not have material adverse effect on the business, properties, operationsoperations or condition, financial condition or results otherwise, of operations of SELLERSeller.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. The SELLER represents represents, unless previously disclosed in writing, to the best of the SELLER’S knowledge and warrants as followsbelief:
(ia) that no utility lines cross the property of an adjoining owner to serve the Property and that no utility lines cross the Property and serve property of an adjoining owner during the SELLER'S period of ownership,
b) no work has been performed by the SELLER has at the Property for which a building permit was required other than that for which building permits were obtained and for which Certificates of Occupancy have been issued.
c) the Property and the present use thereof are not conducted in violation of any general solicitation governmental rules, codes, permits, regulations or general advertising (as defined in Regulation D) with respect limitations, unless same have become legally nonconforming, and there are no violations of any restrictive covenant, agreement or condition subject to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant which title to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company Property is to be conveyed in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to terms hereof. Between the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery date of this Agreement and the consummation date of Closing the transactions contemplated by SELLER will not do anything or allow anything to be done on or about the Property which will result in any such violation;
d) the SELLER represents that the SELLER has no knowledge of any special assessments levied or to be levied against the Property, which are not yet a lien at the Property and has no knowledge of any existing improvements or work done at the Property which may result in special taxes or assessments to be paid thereon;
e) There are no pending public agency (including but not limited to Planning, Zoning, Inland Wetlands, etc.) hearings or appeals therefrom concerning the Property or any abutting property and will promptly notify the BUYER if the SELLER receives notice or learns of any such hearings after the signing of this Agreement do and prior to the Closing;
f) the property abuts a public highway or is to be conveyed together with a permanent right of way or easement to a public highway; and
g) there are no above-ground or underground storage tanks on the Property which leak or have leaked and that any such storage tank(s) are not currently in disrepair and will not conflict with or result in a breach by SELLER has no knowledge of any of underground storage tank(s), except as disclosed in writing to BUYER. In the terms or provisions of, or constitute a default under, the certificate of incorporation event that any such Underground Storage Tank(s) (or charterUST) or by-laws of was/were removed and/or abandoned by SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order has knowledge of any courtsuch removal and/or abandonment, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over then SELLER or shall provide to BUYER any documentary evidence of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body such removal and/or abandonment prior to the expiration of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERResearch Completion Date.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER represents In order to induce Purchaser to enter into this Purchase and warrants Sale Agreement, each Seller makes the following representations and warranties, each of which representations and warranties is true and correct on the date hereof and shall be true and correct as followsof the Closing, if any:
a. Seller is duly organized, validly existing and in good standing in the jurisdictions referenced in the preamble to this Purchase and Sale Agreement.
b. Seller is duly authorized to execute, deliver and perform this Purchase and Sale Agreement and all documents and instruments and transactions contemplated hereby or incidental hereto.
c. Seller (or Seller’s respective authorized representative) is a “qualified institutional buyers” within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and has evaluated the merits and risks of entering into this Purchase and Sale Agreement, without reliance upon any statements from representatives of the Purchaser other than the Purchaser’s representations and warranties contained in Paragraphs 9 and 13 and based on such information as Sellers have deemed appropriate, and made its own analysis and decision to enter into this Purchase and Sale Agreement in light of these risks and uncertainties. Sellers have had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the risks involved in this Purchase and Sale Agreement and the terms hereof and to make an informed decision with respect to entering into this Purchase and Sale Agreement. Sellers acknowledge that the Purchaser is relying on the truth and accuracy of the foregoing representations and warranties in entering into this Purchase and Sale Agreement.
d. Seller is the sole legal and beneficial owner of and has good and valid title to the Whitebox Notes in the amount listed by such Seller’s name in the attached Schedule 1, free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto, except the Notes may be held by the Seller’s prime broker on behalf of the Seller in street name. Sellers have not, in whole or in part, (i) SELLER has not conducted assigned, transferred, hypothecated, pledged or otherwise disposed of its Whitebox Notes, or (ii) given any general solicitation person or general advertising (as defined in Regulation D) entity any transfer order, power of attorney or other authority of any nature whatsoever with respect to any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsits Whitebox Notes.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Richardson Electronics LTD/De)
Seller’s Representations. SELLER As a material inducement to Purchaser entering into this Contract, Seller warrants and represents to and covenants with Purchaser that the following matters are true as of the Effective Date and that they will also be true as of Closing Date. Notwithstanding anything to the contrary herein, the effect of the representations and warranties made in this contract shall not be diminished or deemed to be waived by any inspections, tests or investigations made by Purchaser or its agents. Seller agrees to indemnify and hold harmless Purchaser from any and all claims, costs, judgments, damages, fees (including attorney’s fees) repairs, or expenses incurred as a result of any breach of any warranty and representation.
(a) The Property is currently subject to leases, tenancies or other occupancy rights. However, Seller agrees to deliver property on or before April 30, 2012 free of any leases, tenancies or other occupancy rights, recorded or unrecorded, written or oral subject to Paragraphs 16 and 17 herein.
(b) Seller has no notice or knowledge of any pending lawsuits, any pending condemnation or eminent domain proceedings with respect to the Property.
(c) The execution, delivery and performance of this Agreement by Seller has been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to render this document a valid and binding instrument enforceable in accordance with its terms.
(d) Seller is not a "foreign person" within the meaning of the United States tax laws, to which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Seller shall deliver to Purchaser an affidavit to such effect, which shall also state Seller's social security number and the state within the United States under which Seller then exists. Seller acknowledges and agrees that Purchaser shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as same may be modified and amended from time to time, and Seller shall act in accordance with all reasonable requirements of Purchaser to effect such full compliance by Purchaser.
(e) Neither Seller nor any of its affiliates have generated, recycled, reused, sold, stored, handled, transported or disposed of any Hazardous Substance on the Property during any period of xxxx Xxxxxx has had an interest in the Property. To the best of Seller's knowledge, the Property complies with all applicable local, state, federal environmental laws, regulations, ordinances or administrative or judicial orders relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance. As used herein, the term “Hazardous Substance” means any substance or material defined or designated as a hazardous or toxic waste material or substance or other similar term by any federal, state environmental statute, regulation or ordinance presently in effect, as such statute, regulation or ordinance may be amended from time to time or any petroleum or petroleum derivative products. Without limiting the foregoing Seller further covenants and warrants as followsunto Purchaser that during the period in which Seller has had an interest in the Property:
(i) SELLER has not conducted no asbestos or similar materials now or at any general solicitation or general advertising (as defined time in Regulation D) with respect to any of the Securities offered hereby;
past have been located upon the Property; (ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLERpetroleum, or any indenture, mortgage, deed of trust petroleum derivative products have ever been stored or other material agreement or instrument disposed on the Property. Seller hereby discloses to which SELLER Purchaser that radon is a party or by which naturally occurring radioactive gas, that, when it or any has accumulated in a building in sufficient quantities may present health risks to persons who are exposed to it over time. Levels of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance radon have been found in buildings in Florida. Additional information regarding radon and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) radon testing may be obtained from your county public health unit. To the best of the CompanySeller's knowledge after reasonable investigation, no radon contamination exists or has existed on the information contained in Property. While the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission Seller does not contain have any untrue statement of a material fact or omit reason to state believe that there is any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable environmental contamination on the books and records property, Seller does disclose that a former tenant of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securitiesspace number 101 operated a drycleaner.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Representations. SELLER Seller represents and warrants as followsto Buyer:
(a) Except as may be listed in Exhibit M attached hereto and incorporated herein by this reference, Seller has not received any written notice of any current or pending litigation against Seller and to Seller’s knowledge no litigation has been threatened which would, if determined adversely to Seller, materially adversely affect the Property.
(b) As of the Commencement Date, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than (i) SELLER the Contracts listed in Exhibit B attached hereto, (ii) the Leases, and (iii) liens, encumbrances, covenants, conditions, restrictions, easements and other matters of record.
(c) Except for defaults cured on or before the Commencement Date, to Seller’s knowledge Seller is not in default under the terms of any of the Contracts except as may be listed in Exhibit M attached hereto.
(d) As of the Commencement Date, the only tenants of the Property with whom Seller has entered into a Lease are the tenants listed in Exhibit N attached hereto and incorporated herein by this reference; provided, however, that the foregoing is not intended (and shall not be construed) as a representation by Seller of the parties that are in actual possession of any portion of the Property since there may be subtenants, licensees or assignees that are in possession of portions of the Property of which Seller may not be aware.
(e) Except for violations cured or remedied on or before the Commencement Date and except as may be listed in Exhibit M attached hereto, as of the Commencement Date, Seller has not conducted received any general solicitation or general advertising written notice from any governmental authority of any violation of any Law applicable to the Property that would have a material adverse effect on the Property.
(f) As of the Commencement Date, except as defined in Regulation D) may be set forth on Exhibit B attached hereto, there are no currently effective leasing commission agreements with respect to any the Property that will be binding upon Buyer after the Closing.
(g) To Seller’s knowledge, the documents heretofore or hereafter delivered or otherwise made available to Buyer prior to Closing (i) include all documents used by Seller in the day-to-day operations and management of the Securities offered hereby;
Property, and (ii) The Debentures, when issued and delivered pursuant to are the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company same documents used in accordance connection with their terms, subject to (A) bankruptcythe performance by Seller of its fiduciary obligations to its clients and investors, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy preparation of specific performance financial statements and injunctive and other forms of equitable relief may be subject to equitable defenses and reports submitted to the discretion clients and investors of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsSeller.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
Seller’s Representations. SELLER represents Each of the Sellers (who makes the following representations only to the extent of the interests owned by each of the Sellers in the Leases) represents, warrants and warrants as followsagrees to and with Buyer that:
(ia) SELLER has At such time as the Un-issued Leases are issued, Sellers shall own or otherwise have the right to assign and convey or cause to be assigned and conveyed the Un-issued Leases, all of which shall be free and clear of any liens and encumbrances and provide for a net revenue interest to Sellers of not conducted any general solicitation less than 83.33334%, prior to reservation of an overriding royalty equal to five percent (5%) of 8/8ths as provided for below.
(b) There is no litigation or general advertising (as defined in Regulation D) with respect governmental investigation or proceeding pending or, to the knowledge of the Sellers, threatened affecting the Leases or which would have the effect of restraining or prohibiting any of the Securities offered hereby;transactions contemplated by this Agreement.
(iic) The DebenturesThis Agreement constitutes the valid and binding agreement of Sellers in accordance with its terms, when issued and delivered pursuant all instruments required hereunder to be executed by Sellers at the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will Closing shall constitute valid and legally binding obligations agreements of the Company Sellers in accordance with their terms. The execution, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium delivery and similar laws now or hereafter in effect relating to creditors' rights performance of this Agreement and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be transactions contemplated hereby have been duly and validly authorized and issued, fully-paid and non assessable and will not subject by all requisite action on the holders thereof to personal liability by reason part of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a partySellers;
(ivd) This Agreement has been duly authorized, validly executed and delivered on behalf by Sellers and all instruments required hereunder to be delivered by each party at the Closing shall be duly executed and delivered by Seller;
(e) Sellers have incurred no liability, contingent or otherwise, for brokers' or finders' fees in respect of SELLER and is a valid and binding agreement of SELLER in accordance with its termsthis transaction for which Buyer shall have any responsibility whatsoever; and
(f) Sellers shall not enter into any new agreements or commitments or incur, subject or agree to incur, any contractual obligation or liability (Aabsolute or contingent) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now affecting or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any of the court before Leases which any proceedings therefor may be brought and (C) to extend beyond the extent that the indemnification provisions contained Closing except in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and connection with the consummation of the transactions contemplated by in this Agreement do not and will not conflict with or result in a breach by SELLER Agreement, without the written consent of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsBuyer;
(vig) No authorizationSellers have relied upon their own independent investigation made by each of them and their respective representatives, approval or consent of or filing with any federalif any, state or local governmental body and have made such investigation of the United States is legally required for Leases as deemed appropriate under the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleadingcircumstances. Since September 30, 1997, there No Seller has been no material adverse development in given any oral or written representations or assurances from any other Seller or the business, properties, operations, financial condition or results of operations of SELLERBuyer other than as set forth herein.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER Except as disclosed to or known by Buyer prior to the satisfaction or waiver of the feasibility contingency stated in Section 5 above, including in the books, records and documents made available to Buyer, or in the title report or any supplemental report or documents referenced therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the following is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, to sell the Property, and warrants to perform its obligations under the Agreement; (b) The books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement comprise all material documents in Seller's possession or control regarding the operation and condition of the Property; (c) Seller has not received any written notices that the Property or the business conducted thereon violate any applicable laws, regulations, codes and ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental consents necessary to own and operate the Property for its current use; (e) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after Closing; (f) There is no pending or threatened condemnation or similar proceedings affecting the Property, and the Property is not within the boundaries of any planned or authorized local improvement district; (g) Seller has paid (except to the extent prorated at Closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 8 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after Closing; (h) Seller is not aware of any concealed material defects in the Property except as follows:
disclosed to Buyer in writing during the Feasibility Period; (i) SELLER has not conducted any general solicitation or general advertising There are no Hazardous Substances (as defined below) currently located in, on, or under the Property in Regulation D) with respect to a manner or quantity that presently violates any of the Securities offered hereby;
Environmental Law (ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There as defined below); there are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable underground storage tanks located on the books Property; and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.there is no pending or threatened investigation or
Appears in 1 contract
Samples: Purchase Agreement
Seller’s Representations. SELLER Seller represents and warrants as followsto and with Purchaser that:
(ia) SELLER has not conducted any general solicitation or general advertising (as defined Each of Seller is a corporation duly organized, validly existing, and in Regulation D) with respect to any good standing under the laws of the Securities offered hereby;State of Delaware, and Seller is duly qualified to carry on its business in the state in which the Subject Assets are located.
(iib) The DebenturesEach of Seller has all requisite power and authority to carry on its business as presently conducted, when issued and delivered pursuant to the terms of enter into this Agreement, will have been duly authorizedto sell the Subject Assets on the terms described in this Agreement, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsperform its obligations hereunder.
(iiic) The SharesEach of Seller will protect, when issued defend, and delivered upon conversion of the Debentures in accordance with their terms, will be duly indemnify Purchaser from and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal against any liability by reason of being such holders. There are no preemptive rights or expense as a result of any shareholder undertakings or agreements of SELLER each Seller for each Seller's brokerage fees, finder's fees, agent's commissions or other similar forms of compensation in connection with this Agreement or any agreement or transaction contemplated hereby.
(d) If any unrecorded written mortgage, deed of trust, or similar lien created by either Seller exists with respect to the Shares contained in SELLER'S Certificate Subject Assets, the appropriate Seller will obtain and file of Incorporation or any agreement to which SELLER is record a party;release of same.
(ive) This Agreement has been duly authorizedThe assignment of the Subject Assets from Seller to Purchaser shall be without warranty of title, validly executed either express or implied, and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may shall be subject to equitable defenses and all validly existing encumbrances, other than those referred to in Article IV (d) above, which pertain to the discretion Leases or other assets. The assignment of the court before which any proceedings therefor may Subject Assets from Seller to Purchaser shall be brought made subject to all royalties, overriding royalty interests, burdens and encumbrances of record as of the Effective Date, except for encumbrances to be released pursuant to Article IV (Cd) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsabove.
(vf) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not conflict with or result in a breach by THE EXPRESS REPRESENTATIONS OF SELLER of any of the terms or provisions of, or constitute a default under, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the DebenturesCONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER REPRESENTATIONS OR WARRANTIES. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of EXPRESSLY DISCLAIMS AND NEGATES AND PURCHASER HEREBY WAIVES, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, QUANTITY, OR VOLUME OF RESERVES, OIL, GAS OR OTHER HYDROCARBONS, IF ANY, IN OR UNDER THE LEASES; THE ENVIRONMENTAL CONDITION, EITHER SURFACE OR SUBSURFACE, OR OTHER CONDITION OF THE SUBJECT ASSETS; OR THE OWNERSHIP OR OPERATION OF THE SUBJECT ASSETS OR ANY PART THEREOF. SELLER as and to the extent provided in the Transaction DocumentsDOES NOT MAKE OR PROVIDE, subject to compliance with Federal and State securities lawsAND PURCHASER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE SUBJECT ASSETS OR ANY PART THEREOF. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the SecuritiesSELLER DISCLAIMS AND NEGATES, AND PURCHASER HEREBY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. THE PERSONAL PROPERTY, EQUIPMENT, IMPROVEMENTS, FIXTURES, AND APPURTENANCES CONVEYED AS PART OF THE SUBJECT ASSETS ARE SOLD AND PURCHASER ACCEPTS SAME "AS IS, WITH ALL FAULTS".
Appears in 1 contract
Seller’s Representations. SELLER Seller hereby represents and warrants to Purchaser except as set forth in that certain schedule (the “Disclosure Schedule”) attached hereto as Exhibit H and made a part hereof for all purposes, as follows:
(ia) SELLER Seller is a duly organized, validly existing limited liability company in good standing under the laws of the State of Florida and is authorized to conduct business in the State of Florida. This Contract has been duly authorized, executed and delivered by Seller, and is and at the time of the Closing will be a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms.
(b) Seller owns a leasehold interest in the Property pursuant to the terms of the Ground Lease. Seller is not in default of its obligations under the Ground Lease and to Seller’s knowledge, the landlord under the Ground Lease is not in default of its obligations thereunder. Seller is the owner of the Improvements.
(c) Seller has not conducted received any general solicitation written notice of a claim that the Property does not comply with any federal, state, county, city or general advertising (as defined in Regulation D) with respect any other laws, ordinances, rules and regulations, including, but not limited to, those relating to environmental, zoning, land use and division, building, fire, health and safety matters, of any government or any agency, body or subdivision thereof bearing on the construction of the Securities offered hereby;Improvements and on the operation, ownership or use of the Property (collectively, “Applicable Laws”), which noncompliance Seller has not cured.
(iid) Seller has received no written notice of any pending or threatened, litigation which does or would affect the Property or Seller’s ability to fulfill all of its obligations under this Contract. There are no outstanding claims on Seller’s insurance policies which claims relate to the Property. Seller has received no written notice of any (and, to Seller’s actual knowledge, there is no) current, proposed or threatened eminent domain or similar proceeding, or private purchase in lieu of such proceeding, which would affect the Property in any way whatsoever.
(e) The Debentures, when issued and rent roll delivered to Purchaser pursuant to the terms of this AgreementContract is true and correct in all material respects. Except for the Ground Lease, will have been duly authorizedTenant’s permitted sub-tenants, executedand as set forth on the rent roll, issued there are no leases, agreements, licenses or rights of occupancy with respect to the Property. Seller has delivered to Purchaser a true and delivered and will constitute valid and legally binding obligations complete copy of the Company Lease. To Seller’s actual knowledge, no material default or breach exists on the part of Tenant under the Lease. Seller as landlord has fully completed all construction obligations and all tenant improvements specified in accordance with their terms, subject the Lease to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that be the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion responsibility of the court before which landlord thereunder and has paid all tenant improvement costs, allowances and leasing commissions applicable thereto and no such costs are payable at any proceedings therefor may be brought and (C) to time hereafter. Seller has not received any written notice of any default or breach on the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(iii) The Shares, when issued and delivered upon conversion part of the Debentures in accordance with their termslandlord under the Lease, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject nor does there exist any default or breach on the holders thereof to personal liability by reason part of being such holdersthe landlord thereunder. There are no preemptive rights agreements which would require the payment of a leasing commission by the landlord upon any shareholder renewal or expansion of SELLER with respect to the Shares contained in SELLER'S Certificate Lease. There are no pending contracts for the sale of Incorporation all or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion portion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperty.
(vf) The execution and delivery of this Agreement and Except as set forth on Exhibit L attached hereto, there are no Service Contracts or other written agreements for services, supplies or materials affecting the consummation use, operation or management of the transactions contemplated Property entered into by this Agreement do Seller. Seller has delivered to Purchaser true, complete and correct copies of all Service Contracts. Seller is not and will not conflict with in default or result in a breach by SELLER of any of its obligations under the terms Service Contracts, and to Seller’s actual knowledge, no other party to a Service Contract is in default or breach of its obligations thereunder.
(g) Seller has not received any written notice concerning any alleged violation by the Property or Seller of any applicable environmental law, rule or regulation which remains uncured.
(h) Purchaser has no obligation to continue to employ any persons presently employed by Seller at the Property.
(i) Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as defined in the Internal Revenue Code (“Code”)), and is not subject to the provisions of, or constitute a default under, the certificate of incorporation (or charterSections 897(a) or by-laws 1445 of SELLER, or any indenture, mortgage, deed the Code related to the withholding of trust or other material agreement or instrument sales proceeds to which SELLER foreign persons.
(j) The list of Personal Property contained on Exhibit M attached hereto is a party or true and complete list of the Personal Property owned by which it or Seller.
(k) Neither Seller, nor to Seller’s knowledge, any of its properties Seller’s partners, officers, directors or assets are boundemployees, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of is named as a “Specially Designated National and Blocked Person” as designated by the United States is legally required for the issuance and sale Department of the Debentures and Treasury’s Office of Foreign Assets Control or as a person, group, entity or nation designated in Presidential Executive Order 13224 as a person who commits, threatens to commit, or supports terrorism; (provided no commission ii) to Seller’s knowledge, Seller is not owned or other remuneration is paid or given controlled, directly or indirectly by SELLER the government of any country that is subject to a United States Embargo; (iii) to Seller’s knowledge, Seller is not acting, directly or indirectly, for soliciting such conversionor on behalf of any person, group, entity or nation named by the United States Treasury Department as a “Specially Designated National and Blocked Person”, or for or on behalf of any person, group, entity or nation designated in Presidential Executive Order 13224 as a person who commits, threatens to commit, or supports terrorism; and (iv) the issuance of the Shares upon conversion of the Debentures in accordance with their termsto Seller’s knowledge, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained Seller is not engaged in the Company's Annual Report transaction contemplated hereby directly or indirectly on Form 10K for behalf of, or facilitating the year ended December 31transaction contemplated hereby directly or indirectly on behalf of, 1996any such person, Proxy statement relating to the Annual Meeting of Shareholders held on June 26group, 1997 entity or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLERnation.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Seller’s Representations. SELLER represents A. The Seller makes the following representations and warrants as followswarranties:
(i) SELLER has not conducted any general solicitation or general advertising (as defined Seller owns fee simple title to the Property, subject to those title exceptions disclosed in Regulation D) with respect to any of the Securities offered herebysuch title insurance policy;
(ii) The Debenturesthis Agreement has been properly executed on behalf of Seller by its duly authorized officer and any and all actions, when issued which are or may be necessary to fully authorize Seller to enter into and delivered pursuant to the terms of perform this Agreement, will Agreement have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.properly obtained;
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do herein shall 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, by Seller of any other agreement to which Seller is a party.
(iv) Seller has not engaged any broker or agent with respect to the certificate of incorporation purchase and sale contemplated under this Agreement; and
(v) any and all leases whose term (or charterany extension thereof) would extend beyond the Closing Date or by-laws give the right of SELLER, possession of the Property or any indentureportion thereof beyond the Closing Date have been disclosed to purchaser, mortgage, deed of trust or other material agreement or instrument and will be assigned to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assetsbuyer at closing;
(vi) No authorizationto the best of Seller’s knowledge, approval or consent without independent investigation, neither the Property nor any portion thereof is in violation of or filing with any federal, state or local governmental body law, ordinance or regulation relating to any Hazardous Substances and there exists no presence, use, treatment, storage, release or disposal of any Hazardous Substances at, on or beneath the Property which has created or is likely to create any liability (public or private) of owners or occupants of the United States Property under any current federal, state or local law or regulation or which would require reporting to a governmental agency. No Hazardous Substances are present at, on or beneath any parcel of property or property adjacent to the Property and no parcel or property adjacent to the Property is legally required in violation of any laws, ordinances, rules or regulations with respect to Hazardous Substances. As used herein, the term "Hazardous Substances" means petroleum, petroleum products, asbestos, asbestos containing materials, polychlorinated bi-phenyls ("PCBs") any other hazardous, toxic or dangerous substance, material, or waste as defined for the issuance and sale purposes of the Debentures Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9061 (provided no commission "CERCLA"); Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 ("HMTA"); the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ("RCRA"), and all amendments to the foregoing, or any other federal, state or local law, ordinance, rule or regulation applicable to the Property, and establishing liability, standards or required action as to discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal, removal, use or existence of a hazardous, toxic or dangerous substance, material or waste. No asbestos, asbestos containing materials or PCBs are contained in or stored on or under the Property. There has never been a landfill containing decomposable material, petroleum xxxxx, mineral-bearing mines, sewage treatment facilities, storage tanks, sink holes, radon or other remuneration is paid toxic emissions in, on or given directly or indirectly by SELLER for soliciting such conversion) under the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.Property; and
Appears in 1 contract
Samples: Purchase Agreement
Seller’s Representations. SELLER Subject to the Sellers’ right to update Sellers’ representations and warranties pursuant to the terms hereof, each Seller represents and warrants to Buyer solely with respect to such Seller and the Property owned by such Seller that as follows:of the date hereof the following representations and warranties are true in all material respects and the same shall be true in all material respects as of the Closing Date (except for (a) changes in facts permitted hereunder including, without limitation, as a result of actions taken by Sellers in accordance with Article XV hereof or occurring from events beyond the reasonable control of Sellers and (b) Sellers’ right to update all of the Exhibits and Schedules hereto in order to make such representations and warranties true as of the Closing Date; provided, however, that the foregoing right to update and amend the Exhibits and Schedules hereto shall not be deemed to permit Sellers to default under any covenant made by Sellers herein):
(a) Each Seller is duly organized, validly existing and in good standing under the laws of the State of Nevada or the State of Delaware, as applicable, and each Seller has full power and authority to execute and deliver this Agreement and all other documents now or hereafter to be executed and delivered by it pursuant to this Agreement (the “Seller’s Documents”) and to perform all obligations arising under this Agreement and the Seller’s Documents. This Agreement constitutes, and the Seller’s Documents will each constitute, the legal, valid and binding obligations of each Seller, enforceable against each Seller in accordance with their respective terms, subject to bankruptcy, reorganization and other similar laws affecting the enforcement of creditors’ rights generally and except as may be limited by general equitable principles.
(b) Exhibit A attached hereto is a true and complete list of all tenants (which may be under their trade name or fictitious name) under the Leases (except for any tenants for Master Lease Space or Earnout Space) as of the date set forth on Exhibit A. True and complete copies of all Leases have been made available to Buyer. Except as otherwise specifically set forth in Exhibit B attached hereto: (i) as of the date hereof all of the Leases are in full force and effect in accordance with their respective terms; and (ii) no Tenant has given written notice of default to any Seller nor has Seller actual knowledge of any material monetary default by any Tenant under its Lease, except as set forth on Exhibit B and (ii) all Tenants pay their share of CAM, Taxes and insurance except as set forth in the Leases.
(c) Exhibit C attached hereto is a true and complete list of all Service Contracts affecting the Properties (subject to amendments, modifications or supplements permitted pursuant to Article XV). Except as set forth on Exhibit C, (i) to Sellers’ knowledge all of the Service Contracts are in full force and effect in accordance with their respective terms, and (ii) as of the date hereof, no Seller has received from any counter party to any Service Contract a written notice claiming that any Seller is in any default under such Service Contract, which material default remains uncured.
(d) Seller has not received written notice of any pending or threatened condemnation or eminent domain proceedings affecting the Properties or any part thereof and to Seller’s knowledge no condemnation or eminent domain proceeding is anticipated.
(e) To Sellers’ knowledge, except as set forth on Exhibit G attached hereto, there are no pending actions, suits, arbitrations, claims or proceedings affecting the Properties or Sellers which would have an adverse effect on the Properties or Sellers’ ability to perform under this Agreement and no Seller has received any written notices of any such threatened or contemplated actions, suits, arbitrations, claims or proceedings which claims would not be fully covered by insurance (subject to deductibles).
(f) Except as set forth on Exhibit G-1 attached hereto, Seller has not received any notice of any current violations of any laws, statutes, ordinances, regulations or other requirements of any governmental agency in connection with or related to the Properties, including any violations of any environmental laws and to Seller’s knowledge no such violations exist as of the date hereof.
(g) Attached as Exhibit E is a true, correct and complete list of (i) all leasing commission agreements entered into by any Seller and in effect as of the date hereof (collectively, “Listing Agreements”), and (ii) all improvements and tenant allowances required to be made by the Sellers, as applicable. Except as otherwise set forth in Section 6.2 hereof and Exhibit E, no amounts are presently due or may become due and owing thereunder.
(h) Attached as Exhibit I is a list of all Security Deposits held by Sellers as of the date hereof.
(i) SELLER Sellers’ represent and warrant that no Seller has not conducted any general solicitation or general advertising (as defined in Regulation D) with respect to employees and there are no unemployment taxes due by any of the Securities offered hereby;
(ii) The Debentures, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations of the Company in accordance with their terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsSeller.
(iiij) The SharesExcept as set forth on Exhibit G-2 attached hereto, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are Seller has received no preemptive rights notice of any shareholder of SELLER with respect special assessments and to Seller’s knowledge no special assessments pertaining to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsProperties are anticipated.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Seller’s Representations. SELLER represents As a material inducement to the Purchaser to enter into this Agreement and warrants consummate the transaction contemplated hereunder, the Sellers make the following representations and warranties to the Purchasers, which representations and warranties are true as follows:
of the date of this Agreement and, as a condition of the Purchaser’s obligation to consummate the transaction contemplated hereunder, shall be true and correct in all material respects as of the Closing Date; provided, that, (i) SELLER has not conducted the Representations and Warranties set forth in this Section 7.2 shall be treated as modified as of the Closing, and without breach of the foregoing obligation of the Sellers (but, without limiting the Sellers’ obligations set forth elsewhere in this Agreement or waiving any general solicitation or general advertising (as defined in Regulation D) claim by the Purchaser with respect to any default by the Sellers of any such obligation), by the Securities offered hereby;
Sellers’ delivery at the Closing of a certification in substantially the form attached hereto as EXHIBIT T, reflecting the occurrence of any event or change in the state of facts first arising after the date hereof and prior to the Closing relating to the Express Representations and Warranties made by the Sellers (the “Sellers’ Closing Certification”) and (ii) The Debenturesnotwithstanding the foregoing, when issued and delivered pursuant to the terms of this Agreement, will have been duly authorized, executed, issued and delivered and will constitute valid and legally binding obligations it shall not be a condition of the Company in accordance with their termsPurchaser’s obligation to consummate the transaction contemplated hereunder, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy representation made in the last sentence of specific performance Section 7.2(c)(12) be true and injunctive correct as of the Closing Date or that such representation be included in the Sellers’ Closing Certification. The following representations and other forms of equitable relief warranties (as the same may be subject modified by any Sellers’ Closing Certification) shall survive until the Expiration Date. It is acknowledged and agreed that any matter expressly disclosed on any Exhibit attached hereto shall be deemed to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and an exception (Cas applicable) to every representation made herein by the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable lawsSellers. THE PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, (X) EACH OF THE PARTIES THAT CONSTITUTE THE SELLERS ARE REFERRED TO COLLECTIVELY AS THE SELLERS MERELY FOR THE SAKE OF CONVENIENCE AND (Y) EACH SELLER MAKES THE EXPRESS REPRESENTATIONS AND WARRANTIES ONLY ON ITS OWN BEHALF AND SOLELY WITH RESPECT TO (1) ITSELF AND ITS MEMBERS, MANAGERS, BENEFICIARIES OR OTHER BENEFICIAL OWNERS, AS APPLICABLE, (2) ANY PROPERTY OR ASSET THAT IT OWNS, (3) ANY LEASE DOCUMENTS, FINANCING DOCUMENTS, NONDISTURBANCE AGREEMENTS, CONTRACTS, PERMITS OR OTHER AGREEMENTS THAT IT HAS ENTERED INTO OR MAY BE BOUND BY, (4) ANY RECOGNIZED SUBLEASES RELATING TO ANY PROPERTY THAT IT OWNS, (5) ANY COLLATERAL RELATING TO ANY LEASE PERTAINING TO ANY PROPERTY THAT IT OWNS OR (6) ANY OTHER MATTER RELATING TO ANY PROPERTY OR ASSET THAT IT OWNS.
(iii) The Shares, when issued and delivered upon conversion of the Debentures in accordance with their terms, will be duly and validly authorized and issued, fully-paid and non assessable and will not subject the holders thereof to personal liability by reason of being such holders. There are no preemptive rights of any shareholder of SELLER with respect to the Shares contained in SELLER'S Certificate of Incorporation or any agreement to which SELLER is a party;
(iv) This Agreement has been duly authorized, validly executed and delivered on behalf of SELLER and is a valid and binding agreement of SELLER in accordance with its terms, subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought and (C) to the extent that the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable laws.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement 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, the certificate of incorporation (or charter) or by-laws of SELLER, or any indenture, mortgage, deed of trust or other material agreement or instrument to which SELLER is a party or by which it or any of its properties or assets are bound, or any existing applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over SELLER or any of its properties or assets;
(vi) No authorization, approval or consent of or filing with any federal, state or local governmental body of the United States is legally required for the issuance and sale of the Debentures and (provided no commission or other remuneration is paid or given directly or indirectly by SELLER for soliciting such conversion) the issuance of the Shares upon conversion of the Debentures in accordance with their terms, as contemplated by this Agreement, except the filing of a Form D with the Commission;
(vii) To the best of the Company's knowledge after reasonable investigation, the information contained in the Company's Annual Report on Form 10K for the year ended December 31, 1996, Proxy statement relating to the Annual Meeting of Shareholders held on June 26, 1997 or Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as filed with the Commission does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are made, not misleading. Since September 30, 1997, there has been no material adverse development in the business, properties, operations, financial condition or results of operations of SELLER.
(viii) SELLER will issue one or more certificates representing the Debentures in the name of BUYER in such denominations (in multiples of $25,000) to be specified by BUYER prior to closing and will issue one or more certificates representing the Shares in such denominations to be specified by Buyer upon conversion of the Debentures. SELLER further warrants that the Debentures and the Shares shall be transferable on the books and records of SELLER as and to the extent provided in the Transaction Documents, subject to compliance with Federal and State securities laws. Nothing in this Section shall affect in any way BUYER'S obligations and agreement to comply with all applicable securities laws upon resale of the Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dividend Capital Total Realty Trust Inc.)
