Condemnation Proceeding. Buyer acknowledges that the Metro Gold Line Foothill Extension Construction Authority (the “Authority”) has begun proceedings with respect to a proposed taking (the “Proposed Condemnation”) of a portion of the Owned Real Property (the “Current Parking Lot”). Following the Closing, Seller shall have the right to control all ongoing proceedings in connection with the Proposed Condemnation, including the retention of outside counsel, as if Buyer had delivered an Indemnification Certificate to Seller with respect to the Proposed Condemnation, and Seller shall have delivered an Assumption Notice with an Acknowledgement, to Buyer; provided, however, that if the scope of the property subject to the Proposed Condemnation expands beyond the Current Parking Lot or otherwise effect any other portion of the Owned Real Property or the operations thereon, Seller shall immediately notify Buyer and Seller shall not take any action with respect to the Proposed Condemnation without the prior written consent of Buyer to any decisions regarding the Proposed Condemnation or the settlement thereof. Seller shall seek to obtain full, fair, and just compensation from the Authority in return for the taking of the Current Parking Lot (including negotiating with the Authority for a sale of the property in lieu of such taking, in which case such sale shall be subject to the same terms and conditions hereunder) and as a result of the Proposed Condemnation; provided that any such compensation shall be considered an Excluded Asset hereunder. Buyer shall provide all reasonably necessary support and access required by Seller or Seller’s representatives to enable Seller to negotiate a resolution of the compensation, at no cost to Buyer and Seller shall keep Buyer reasonably informed as to the status of the Proposed Condemnation and any negotiations with the Authority. No consent of Buyer shall be required prior to the acceptance by Seller of any compensation offer from the Authority, except as otherwise provided herein. To the extent required, Buyer shall execute any and all such reasonable documents required to accept a compensation offer, either by itself or by granting an appropriate power of attorney to Seller or Seller’s counsel. In anticipation of the taking or purchase by the Authority of the Current Parking Lot, Buyer shall develop plans (or leverage those plans already being established by Seller) (the “Plans”) for the construction of a replacement parking lot on the Owned Real Property, as well as any additional capital work to the Owned Real Property which is required by Law or is reasonably required in connection with the replacement of the Current Parking Lot and the reasonable establishment of such replacement parking lot for use on the Owned Property and in all cases results directly from the taking by the Authority of the Current Parking Lot or the construction of the replacement parking lot on the Owned Property (collectively, the “Work”). The Plans shall be accompanied by a proposed budget (the “Budget”) with respect to the Work. The Plans and the Budget shall be subject to the review and approval by the Seller, such approval not to be unreasonably withheld, conditioned or delayed; provided, however, that if Seller shall fail to approve or disapprove of such Plans and Budget within forty-five (45) days after receipt thereof, Seller shall be deemed to have consent to such Plans and Budget in the form so submitted. The parties acknowledge and agree that as a result of the anticipated timing of the Proposed Condemnation, Buyer shall have the right to begin reasonable development of the Plans and Budget promptly after the date of this Agreement and in the event the Proposed Condemnation (or a settlement thereof that results in the taking of the Current Parking Lot) is not consummated, Seller shall (i) promptly notify Buyer when Seller becomes aware that the Current Parking Lot will not be sold or taken and (ii) have the obligation to reimburse Buyer for all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the preparation of the Plans and Budget prior to the date Buyer receives such notice. The Work, which shall be performed by the Buyer (or which Buyer shall cause to be performed), shall conform in all material respects to the approved Plans and Budget, provided that any material variances from either the Work or the Budget shall be subject to Seller’s further approval, such approval not to be unreasonably withheld, conditioned or delayed. The contractor shall only use materials which are of the same quality materials as is currently found at the Current Parking Lot and at the Owned Real Property, provided that Seller shall not be responsible for any materials or construction which is of a higher quality than the materials currently used at the Parking Lot and Owned Real Property. Buyer shall bid out the Work to no less than three contractors, provided that Buyer shall keep Seller informed of all bids received. Buyer shall be responsible for obtaining all permits and approvals with respect to the Work. Buyer shall use reasonable efforts to obtain warranties from Seller’s Contractors that are consistent with comparable work in the construction industry. Following the completion of the Work, Seller shall have the right to enter upon the Owned Real Property to inspect the Work to verify that the Work was completed in a manner consistent with the Plans. Seller shall indemnify Buyer with respect to all reasonable out of pocket third party costs and expenses incurred by Buyer in connection with the Work to the extent performed in compliance with this Section 5.27. Seller shall pay Buyer such amounts no later than thirty (30) days after Buyer’s demand therefor, which demand shall be accompanied by a written invoice detailing the costs so expensed. Seller’s indemnification obligations under this Section 5.27 shall terminate upon the first to occur: (x) completion of the Work in accordance with the Plans and payment by Seller in accordance with the preceding sentence or (y) an announcement or other statement by the Authority that it no longer plans to proceed with the taking.
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Sources: Asset Purchase Agreement, Asset Purchase Agreement (Woodward, Inc.)
Condemnation Proceeding. Buyer acknowledges that (a) The Water Authority shall promptly cause ----------------------- the Metro Gold Line Foothill Extension Construction Authority publication of a notice of public hearing (the “Authority”"Notice of Public Hearing") has begun proceedings ------------------------ pursuant to the Eminent Domain Procedure Law of the State of New York ("EDPL"), ---- Section 202, for the purpose of conducting a public hearing (the "Public ------ Hearing") with respect to a proposed taking the Condemnation Proceeding (the “Proposed Condemnation”) of a portion of the Owned Real Property (the “Current Parking Lot”as defined below). Following If, ------- during the Closingperiod from the date hereof to the Closing Date, Seller any Person shall commence any action seeking a judicial review of any determination or finding made by the Water Authority with respect to condemnation or the Public Hearing, to any court of competent jurisdiction, then JWS shall have the right to control require that the transactions contemplated hereby be consummated without the use of the EDPL and no Condemnation Proceeding shall be filed pursuant to Section 4.7(b), or if filed shall be discontinued, and the following additional deliveries shall be made pursuant to Section 2.3 hereof:
(i) one or more bargain and sale deeds sufficient to convey title to those Acquired Assets consisting of real property, free of all ongoing proceedings Liens (subject to Permitted Exceptions), in connection customary form with covenant only against grantor's acts, duly executed and acknowledged by JWS and in proper form for recording;
(ii) one or more bills of sale sufficient to convey title to those Acquired Assets consisting of personal property, with the Proposed Condemnationfollowing warranties:
(A) that JWS is the sole and absolute owner of the property described in said ▇▇▇▇ of sale and has full right to transfer same;
(B) that JWS is transferring title thereto free and clear of any liens, including mortgages, debts or other encumbrances of whatsoever kind or nature;
(C) that there are no judgments existing against JWS in any court, nor are there any replevins, attachments or executions related to the retention Acquired Assets issued against JWS now in force; and
(D) that JWS has sufficient assets to pay all of outside counsel, its creditors;
(i) an affidavit to the effect that JWS is not a "foreign person," as if Buyer had delivered an Indemnification Certificate defined in Section 1445(f)(3) of the Internal Revenue Code; (ii) information sufficient to Seller permit the Water Authority to complete Internal Revenue Service Form 1099 with respect to the Proposed Condemnation, and Seller shall have delivered an Assumption Notice with an Acknowledgement, to Buyer; provided, however, that if the scope transfer of the property subject to the Proposed Condemnation expands beyond the Current Parking Lot or otherwise effect any other portion Acquired Assets; (iii) evidence of the Owned amount of New York State Real Property or Transfer Tax (the operations thereon, Seller shall immediately notify Buyer and Seller shall not take any action "Transfer Tax") payable with respect to the Proposed Condemnation without the prior written consent of Buyer to any decisions regarding the Proposed Condemnation or the settlement thereof. Seller shall seek to obtain full, fair, and just compensation from the Authority in return for the taking transfer of the Current Parking Lot (including negotiating Acquired ------------ Assets, together with the Authority for a sale of the property in lieu of funds sufficient to pay such taking, in which case such sale shall be subject to the same terms and conditions hereunder) and as a result of the Proposed Condemnation; provided that any such compensation shall be considered an Excluded Asset hereunder. Buyer shall provide all reasonably necessary support and access required by Seller or Seller’s representatives to enable Seller to negotiate a resolution of the compensation, at no cost to Buyer and Seller shall keep Buyer reasonably informed as to the status of the Proposed Condemnation and any negotiations with the Authority. No consent of Buyer shall be required prior to the acceptance by Seller of any compensation offer from the Authority, except as otherwise provided herein. To the extent required, Buyer shall execute any and all such reasonable documents required to accept a compensation offer, either by itself or by granting an appropriate power of attorney to Seller or Seller’s counsel. In anticipation of the taking or purchase by the Authority of the Current Parking Lot, Buyer shall develop plans (or leverage those plans already being established by Seller) (the “Plans”) for the construction of a replacement parking lot on the Owned Real Property, as well as any additional capital work to the Owned Real Property which is required by Law or is reasonably required in connection with the replacement of the Current Parking Lot Transfer Tax and the reasonable establishment of such replacement parking lot for use on the Owned Property and in all cases results directly from the taking by the Authority of the Current Parking Lot or the construction of the replacement parking lot on the Owned Property (collectively, the “Work”). The Plans shall be accompanied forms customarily completed by a proposed budget (the “Budget”) transferor of real property with respect to such Transfer Tax; (iv) such additional instruments or documents that are customary and necessary to perfect a conveyance of the Work. The Plans and the Budget shall be subject to the review and approval by the SellerAcquired Assets, such approval not to be unreasonably withheld, conditioned or delayed; provided, however, that if Seller no such additional instruments or documents shall fail to approve impose any liability or disapprove of such Plans and Budget within forty-five (45) days after receipt thereof, Seller shall be deemed to have consent to such Plans and Budget in the form so submitted. The parties acknowledge and agree that as a result of the anticipated timing of the Proposed Condemnation, Buyer shall have the right to begin reasonable development of the Plans and Budget promptly after the date of this Agreement and in the event the Proposed Condemnation (cost upon JWS or a settlement thereof that results in the taking of the Current Parking Lot) is not consummated, Seller shall (i) promptly notify Buyer when Seller becomes aware that the Current Parking Lot will not be sold or taken and (ii) have the obligation to reimburse Buyer for all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the preparation of the Plans and Budget prior to the date Buyer receives such notice. The Work, which shall be performed by the Buyer (or which Buyer shall cause to be performed), shall conform in all material respects to the approved Plans and Budget, provided that any material variances from either the Work or the Budget shall be subject to Seller’s further approval, such approval not to be unreasonably withheld, conditioned or delayed. The contractor shall only use materials which are of the same quality materials as is currently found at the Current Parking Lot and at the Owned Real Property, provided that Seller shall not be responsible for any materials or construction which is of a higher quality than the materials currently used at the Parking Lot and Owned Real Property. Buyer shall bid out the Work to no less than three contractors, provided that Buyer shall keep Seller informed of all bids received. Buyer shall be responsible for obtaining all permits and approvals with respect to the Work. Buyer shall use reasonable efforts to obtain warranties from Seller’s Contractors that are consistent with comparable work in the construction industry. Following the completion of the Work, Seller shall have the right to enter upon the Owned Real Property to inspect the Work to verify that the Work was completed in a manner consistent with the Plans. Seller shall indemnify Buyer with respect to all reasonable out of pocket third party costs and expenses incurred by Buyer in connection with the Work to the extent performed in compliance with this Section 5.27. Seller shall pay Buyer such amounts no later than thirty (30) days after Buyer’s demand therefor, which demand shall be accompanied by a written invoice detailing the costs so expensed. Seller’s indemnification obligations under this Section 5.27 shall terminate upon the first to occur: (x) completion of the Work in accordance with the Plans and payment by Seller in accordance with the preceding sentence or (y) an announcement or other statement by the Authority that it no longer plans to proceed with the taking.the
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