Representations and Warranties by Sellers. Each Seller, severally and not jointly, represents and warrants to Purchaser (which representations and warranties shall survive the Closing and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below in this Section 3.1 and in Section 10.15) that: (a) Such Seller is a trust duly created and existing under the laws of the State of Texas. Such Seller has and will have as of the Closing Defensible Title (as defined in Section 5.2) to the Interests of such Seller; provided, however, as to that portion of the Interests of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by H▇▇▇-▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company, such warranty is expressly limited to claims arising by, through or under such Seller or HHOC, Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successors, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS"). (b) Such Seller has the full legal power, right and authority to carry on its business as presently conducted, to enter into this Agreement and to perform its obligations under this Agreement. (c) The execution, delivery and performance by such Seller of this Agreement and the documentation to be executed and delivered by such Seller at the Closing have been authorized by all necessary action on the part of such Seller. Execution, delivery and performance by such Seller of this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of the transactions contemplated by this Agreement will not, (i) violate or be in conflict with any (A) agreement, instrument, judgment, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement of any Seller or (ii) result in the creation of any lien or other encumbrance on the Interests of such Seller. (d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution and delivery thereof by all parties thereto, legal, valid and binding obligations of such Seller enforceable according to their respective terms. (e) No suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is pending or, to the knowledge of such Seller, threatened that might result in impairment or loss or diminution of the title of such Seller to the Interests of such Seller or otherwise adversely affect, in any material respect, any of the Interests of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Seller. (f) Except for the Assignments of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-B, there are no contracts or agreements which burden or will burden or encumber or are otherwise material to the ownership of the Interests of such Seller. (g) Such Seller is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-off. (h) Such Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable. (i) No consents or approvals of any third persons are required in connection with the transfer of the Interests of such Seller from such Seller to Purchaser and there are no preferential purchase rights applicable to the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement. (j) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller. (k) Such Seller is not a nonresident alien of the United States. (l) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands that the transfer of any of such shares of Purchaser Common Stock by such Seller has not been registered under the Securities Act of 1933 (the "Securities Act") or the securities laws of any state and that such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such shares unless the transaction is subsequently registered under the Securities Act and the securities laws of relevant states or exemptions from such registrations are available. Such Seller further understands that the certificate or certificates representing such shares will bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF THE HOLDER) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR." (m) Such Seller has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchaser Common Stock, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:
Appears in 1 contract
Representations and Warranties by Sellers. Each SellerPetroHunter and Sweetpea jointly and severally guarantee, severally represent and not jointly, represents warrant to Falcon and warrants to Purchaser (which representations and warranties shall survive that as of the Closing and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below in this Section 3.1 and in Section 10.15) thatDate:
(a) Such Seller each of Sellers is a trust corporation duly created incorporated, organized and validly existing and in good standing under the laws of the State of Texas. Such Seller has and will have as of the Closing Defensible Title (as defined in Section 5.2) to the Interests of such Seller; provided, however, as to that portion of the Interests of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by H▇▇▇-▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company, such warranty is expressly limited to claims arising by, through or under such Seller or HHOC, Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successors, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS").applicable jurisdiction;
(b) Such Seller each of Sellers has the full legal corporate power, right authority and authority to carry on its business as presently conducted, capacity to enter into this Agreement the Transaction Agreements and all other agreements contemplated by the Transaction Agreements and to perform carry out and complete its obligations under this Agreement.the Transaction Agreements and all other agreements contemplated by the Transaction Agreements;
(c) The execution, delivery and performance by such Seller of this Agreement the Transaction Agreements and the documentation to be executed obligations of Sellers under the Transaction Agreements and delivered by such Seller at the Closing documents and transaction contemplated thereby have been duly and validly authorized by all necessary action on the part of such Seller. Execution, delivery requisite corporate proceedings and performance by such Seller of this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of the transactions contemplated by this Agreement will not, (i) violate or be in conflict with any (A) agreement, instrument, judgment, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement of any Seller or (ii) result in the creation of any lien or other encumbrance on the Interests of such Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution and delivery thereof by all parties theretoconstitute, legal, valid and binding obligations of each of Sellers, enforceable against each of Sellers in accordance with their terms, subject to the limitations with respect to enforcement imposed by applicable laws in connection with bankruptcy, insolvency, liquidation, reorganization or other laws affecting the enforcement of creditors’ rights generally and subject to the availability of equitable remedies such Seller enforceable according to their respective terms.as specific performance and injunction which are only available in the discretion of the court from which they are sought;
(d) neither the entering into nor the delivery of the Transaction Agreements nor the completion by each of Sellers of the Transaction contemplated thereby will conflict with, or constitute a material default under, or result in a material violation of: (i) any of the provisions of the entity formation documents or by-laws of either of Sellers; or (ii) any applicable laws;
(e) No suiteach of Sellers:
(i) has not made an assignment in favor of its creditors or a proposal in bankruptcy to its creditors or any class thereof; (ii) has not had any petition for a receiving order presented in respect of it; and (iii) has not initiated proceedings with respect to a compromise or arrangement with its creditors or for its winding up, arbitration, inquiry, proceeding, audit, claim, demand liquidation or investigation is pending or, to the knowledge of such Seller, threatened that might result in impairment or loss or diminution of the title of such Seller to the Interests of such Seller or otherwise adversely affect, in any material respect, any of the Interests of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Seller.dissolution;
(f) Except except as set forth on Schedule “I”, neither of Sellers is under any obligation, contractual or otherwise, to request or obtain the consent of any person, and no permits, licences, certifications, authorizations or approvals of, or notifications to, any federal, state, municipal or local government or governmental agency, board, commission or authority are required to be obtained by either of Sellers in connection with the Transaction as contemplated herein, except for consents that must be obtained from the Assignments of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-B, there are no contracts or agreements which burden or will burden or encumber or are otherwise material to the ownership Minister for Mines and Energy of the Interests Northern Territory of such Seller.Australia and the Local Aboriginal Groups acting through their representative;
(g) Such Seller each of Sellers is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-off.
(h) Such Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable.
(i) No consents or approvals of any third persons are required in connection with the transfer of the Interests of such Seller from such Seller to Purchaser and there are no preferential purchase rights applicable to the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement.
(j) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller.
(k) Such Seller is not a nonresident alien of the United States.
(l) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands aware that the transfer of any of such shares of Purchaser Common Stock by such Seller has Acquisition Shares have not been and will not be registered under the U.S. Securities Act of 1933 (the "Securities Act") or the securities laws of any state and that these securities may not be issued, offered or sold in the United States without registration under the U.S. Securities Act or compliance with requirements of an exemption from registration and the applicable laws of all applicable states and acknowledges that Falcon has no present intention of filing a registration statement under the U.S. Securities Act in respect of the Acquisition Shares;
(h) PetroHunter is a U.S. Resident as defined under the U.S. Securities Act. and Sweetpea is not a U.S. Resident as defined under the U.S. Securities Act. Each is an “accredited investor” as that term is defined in Section 501(a) of Regulation D promulgated under the Securities Act of 1933. Neither of Sellers will offer or sell the Acquisition Shares in the United States unless such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such shares unless the transaction is subsequently securities are registered under the U.S. Securities Act and the securities laws of relevant all applicable states of the United States or exemptions an exemption from such registrations are registration requirements is available. Such Seller further understands that the certificate or certificates representing such shares will bear a legend substantially as follows, and agrees further that it will not resell the Acquisition Shares, except in accordance with the provisions of applicable securities legislation, regulations, rules, policies and orders and stock exchange rules;
(i) each of Sellers acknowledges that there are restrictions on Sellers ability to resell the Acquisition Shares and it is the responsibility of each of Sellers to find out what those restrictions are and to comply with such legendthem before selling the Acquisition Shares;
(j) each of Sellers acknowledges that the Convertible Securities and Acquisition Shares, if applicable, will be subject to resale restrictions under applicable Canadian Securities Laws and the TSXV Policies. Each of Sellers acknowledges that all certificates issued representing the Convertible Securities and the Acquisition Shares, as well as all certificates issued in exchange for or in substitution therefore, will bear legends to the following effect: "“UNLESS PERMITTED UNDER SECURITIES LEGISLATION THE HOLDER OF THIS SECURITY HAS MUST NOT TRADE THE SECURITY BEFORE [insert date 4 months and one day after the distribution date].” “WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF CANADIAN RESIDENT UNTIL [insert date 4 months and one day from the day of issue].” “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER 1933 (THE “ACT”). THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE SALE, SOLD OR OTHERWISE TRANSFERRED UNLESS REGISTERED IN THE UNITED STATES EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION, THE ISSUER RECEIVES AN OPINION AVAILABILITY OF COUNSEL (WHO MAY WHICH IS TO BE AN EMPLOYEE ESTABLISHED TO THE SATISFACTION OF THE HOLDERCORPORATION.”
(k) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR."each of Sellers acknowledges that any securities of Falcon held by either of Sellers including the Convertible Securities and Acquisition Shares issued to PetroHunter will be subject to the TSXV providing its final acceptance to the Transaction;
(l) all Data has been made available to Falcon and Falcon’s Counsel;
(m) Such each of Sellers has not filed all tax returns that it was required to file, but each has no reason to believe that it has any significant liability for taxes due, including interest and penalties;
(n) to the best knowledge of Sellers, all of the contracts, agreements and instruments set forth on Schedule “C” are valid, binding and enforceable in accordance with their respective terms, except when such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws from time to time in effect which effect the enforcement of creditors’ rights generally and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby;
(o) except as set forth on Schedule “I”, each Seller has such knowledge and experience in financial and business matters so as performed all material obligations which are required to be capable performed by it under the Material Agreements and it is not in default under or in breach of evaluating or in receipt of any claim of default or breach under any Material Agreement, and no event has occurred which, with the merits passage of time or the giving of notice or both, would result in a default, breach or event of noncompliance by a Seller under any Material Agreement;
(p) no Seller has any present expectation or intention of not fully performing on a timely basis all material obligations required to be performed by it under any Material Agreement or other instrument to which it is subject and risks to the knowledge of its investment Sellers, there has been no breach or cancellation by the other parties to any Material Agreement or other instrument to which the Company is a party;
(q) no Seller is a party to any oral contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed in Schedule “C;”
(r) all of the Permits are in full force and effect, in good standing, and enforceable;
(s) Sweetpea is not in breach of any term or condition of any Permit;
(t) all minimum work and expenditures required to be performed up to the Closing Date have been satisfied in relation to each Permit;
(u) all taxes, stamp duties and government charges in relation to the Northern Land Council Exploration Agreements have been paid;
(v) all of the Assets are free and clear of all liens, writs, charges and encumbrances, except liens for taxes arising in Sweetpea’s ordinary course of business that are not yet due and payable, and except for Permitted Encumbrances;
(w) neither of Sellers have received nor delivered any written notices of violation or alleged violation of any provisions of any Applicable Law (including without limitation laws relating to public health, safety, and protection of the environment), and, to the best knowledge of Sellers, there exists no basis upon which any such charge, complaint, action, suit, proceeding, hearing, or investigation may be brought or threatened against Seller by any Governmental Authority;
(x) except as set forth on Schedule “I”, there is no material uninsured litigation, claim or proceeding, including appeals and applications for review, in progress, pending or, to the best of the knowledge of each of Sellers, threatened against either of Sellers or relating to the Beetaloo Basin Project before any Governmental Authority or arbitration panel, and there is not presently outstanding against either of Sellers or in respect of the Beetaloo Basin Project, any judgment, decree, injunction, rule or order of any Governmental Authority or arbitrator which would have material adverse affect on the Beetaloo Basin Project, including, without limitation, the value thereof;
(y) neither Seller nor any director, officer, agent, employee or other person associated with or acting on behalf of either Seller (i) has used any corporate funds of such Seller for any unlawful contributions, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any governmental official or employee from corporate funds of either Seller; (iii) has violated or is in violation of any provision of the United States Foreign Corrupt Practice Act, the OECD Convention on Combating Bribery in International Business Transactions, or any national legislation promulgated thereunder; or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment in connection with the business of either Seller;
(z) Sellers have paid all amounts due to date under the various creditor repayment schedules summarized in a document entitled “Sweetpea Petroleum Payout Program June 2008” and delivered to Falcon before the Acceptance Date, except the last payment due thereon, which will be paid by Sellers no later than August 31, 2008, and Sellers will make all future payments on a timely basis; and
(aa) to the best of Seller’s knowledge, all material outstanding trade payables of Sweetpea in respect of the Beetaloo Basin Project at the Agreement Date are set forth in the Purchaser Common Stock, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:document entitled “Sweetpea Petroleum Payout Program June 2008”.
Appears in 1 contract
Sources: Purchase and Sale Agreement (PetroHunter Energy Corp)
Representations and Warranties by Sellers. Each Seller, severally and not jointly, represents and warrants to Purchaser (which representations and warranties shall survive the Closing and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below in this Section 3.1 and in Section 10.15) that:
(a) Such Seller is a trust natural person, corporation, limited partnership or trust, as the case may be, and, if other than a natural person, is duly created organized and, if required, in good standing in its jurisdiction of organization and existing is qualified and, if required, in good standing under the laws of each additional jurisdiction wherein such qualification is necessary for the State ownership of Texasits assets or the conduct of its business. Such Seller is qualified under applicable laws and regulations, including those of the United States of America, Department of Interior, Minerals Management Service (the "MMS") to own the Interests of such Seller. Such Seller has and will have as at the time of the Closing Defensible Title (as defined in Section 5.25.5) to the Interests of such Seller; provided, however, such representation and warranty, insofar as to that portion of the Interests of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by rights-of-way, consists solely of beneficial ownership, with record title to such rights-of-way being vested in H▇▇▇-▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company, such warranty is expressly limited to claims arising by, through or under such Seller or HHOC, ). Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successors, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS").
(b) Such Seller has the full legal power, right and authority to carry on its business as presently conducted, to enter into this Agreement and to perform its obligations under this Agreement.
(c) The If such Seller is other than a natural person, the execution, delivery and performance by such Seller of this Agreement and the documentation to be executed and delivered by such Seller at the Closing have been authorized by all necessary action on the part of such Seller. Execution, delivery and performance by such Seller of this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of the transactions contemplated by this Agreement will not, (i) violate or be in conflict with any (A) agreement, instrument, judgment, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement governing documents of any Seller that is other than a natural person, or (ii) result in the creation of any lien or other encumbrance on the Interests of such Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution and delivery thereof by all parties thereto, legal, valid and binding obligations of such Seller enforceable according to their respective terms.
(e) No suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is pending or, to the knowledge of such Seller, threatened that might result in impairment or loss or diminution of the title of such Seller to the Interests of such Seller or otherwise adversely affect, in any material respect, any of the Interests of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Seller.
(f) Except for the Assignments of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-B, there are no contracts or agreements All Contracts which burden or will burden or encumber or are otherwise material to the ownership ownership, use, maintenance or operation of the Interests of such Seller (i) are described on Schedule 1-C, (ii) were entered into in the ordinary course of business, and (iii) are in force according to their terms. Neither such Seller nor, to the knowledge of such Seller, any other person or entity is in breach of any obligation under any Contract which might adversely affect any of the Interests of such Seller in any material respect.
(g) All rentals, royalties, shut-in royalties, overriding royalties, taxes and other payments due pursuant to or with respect to the Leases or the production of Substances therefrom or attributable thereto or revenue attributable to such production have been properly paid or placed in suspense.
(h) During the period of ownership by such Seller, (i) the Leases have been drilled, completed, operated, developed and produced in compliance with all applicable judgments, orders, laws, rules and regulations and in accordance with good oilfield practice, (ii) all bonds in favor of the MMS or any other person or entity, including plugging and abandonment bonds and supplemental bonds, required for operation of the Leases have been and are in force, (iii) the Leases and the other Interests of such Seller have been and are insured against such losses and in such amounts as is customary in the industry and (iv) all necessary certificates, consents, permits, licenses and other governmental authorizations affecting the Interests of such Seller have been obtained and have been and are in force. There are no outstanding violations of any applicable regulations, rules or orders of the Federal Energy Regulatory Commission, the MMS, or any other regulatory agency with respect to the Interests of such Seller. Each Well included in the Interests is identified in Schedule 1 A and as of the date of execution of this Agreement, the production status of each such Well is correctly reflected on such Schedule 1-A. There are no W▇▇▇▇ included in the Interests of such Seller or located on the Leases that (A) such Seller is obligated, by applicable judgments, orders, laws, rules, regulations or contract and as of the date of this Agreement, to plug and abandon or cause to be plugged and abandoned currently or (B) are subject to exceptions to a requirement to plug and abandon issued by a governmental authority.
(i) Such Seller is not obligated, under a take-or-pay or similar arrangement, or by virtue of an election to non-consent or not participate in a past or current operation on the Leases pursuant to applicable operating agreements, to produce Substances, or allow Substances to be produced, without receiving full payment at the time of delivery in an amount that corresponds to the relevant Net Revenue Interest of such Seller listed in Schedule 1-A. Except pursuant to the provisions of any of the Contracts listed in Schedule 1-C, none of the Leases is subject to any contract or agreement for the sale of Substances produced from or allocable thereto which is not subject to termination by such Seller (or the representative of such Seller which is a party thereto) on no more than thirty (30) days' advance notice.
(j) Such Seller is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-offoff and there has been no production of Substances from or allocable to the Leases in excess of the allowable production established pursuant to applicable state or federal law or regulation that would result in a restriction on production of Substances from or allocable to the Leases subsequent to the Effective Time.
(hk) There has been no material adverse change in the condition of any of the Leases or any Equipment after the Effective Time, except for Casualty Losses to the extent coverage is provided under one or more policies of insurance, depletion through normal production, changes in rates of production that occur in the ordinary course of operation, depreciation of the Equipment through ordinary wear and tear, and changes in general economic conditions and pricing of Substances generally affecting the offshore Gulf of Mexico oil and gas industry.
(l) Such Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable.
(im) Except as set forth in Schedule 3.1(m), as of the date hereof, there are no outstanding authorities for expenditures or any oral or written commitments or proposals to conduct operations on the Leases which are required to be approved by non-operators under the terms of the applicable joint operating agreement.
(n) Except as set forth in Schedule 3.1(n), as of the Effective Time, no portion of the Interests was over produced, under produced, or otherwise subject to an imbalance or make-up obligation (collectively, "Imbalances") with respect to Substances produced from or allocated to the Interests of such Seller, regardless of whether such Imbalances arise at the platform, wellhead, pipeline, gathering system or other level and regardless of whether such Imbalances arise under a Contract or otherwise.
(o) No consents or approvals of any third persons are required in connection with the transfer of the Interests of such Seller from such Seller to Purchaser other than the approval of the MMS and the consents listed in Schedule 3.1(o) and there are no preferential purchase rights applicable to the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement.
(jp) All permits, licenses and other authorizations (collectively, "Environmental Permits") which are required under any law, ordinance, statute, code, rule, regulation, agreement, judgment, order, or decree of any federal, state or local governmental authority applicable to ownership or operation of the Interests of such Seller, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste into the environment, including ambient air, surface water, ground water or land or soil (collectively, "Environmental Laws") have been obtained, and all of such Environmental Permits are in full force and effect and all fees and charges relating thereto have been paid. The Interests of such Seller are in material compliance with all Environmental Laws and Environmental Permits applicable to the Interests of such Seller, and the Interests of such Seller are not subject to any material unfulfilled remedial obligations pursuant to Environmental Laws. Such Seller has not received notice of any violation or alleged violation that is continuing (or of any fact or circumstance which with notice or the passage of time or both would constitute a violation) of any Environmental Laws or Environmental Permits relating to the Interests of such Seller or any investigation relating thereto.
(q) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller.
(kr) Such Seller is not a nonresident alien of the United States.
(ls) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller Buyer Warrants to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands that neither the transfer of any of such Buyer Warrants nor the transfer of the shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock by Stock") issuable upon exercise of any of such Seller Buyer Warrants has not been registered under the Securities Act of 1933 (the "Securities Act") or the securities laws of any state and that such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such Buyer Warrants or shares of the Purchaser Common Stock unless the transaction is subsequently registered under the Securities Act and the securities laws of relevant states or exemptions from such registrations are available. Such Seller further understands that the certificate or certificates representing such shares of the Purchaser Common Stock will bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF THE HOLDER) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR." and that, if such Seller is an executive officer of HHOC or one of its Subsidiaries on the Closing Date, the certificate or certificates representing such shares will also bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY IS ALSO SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN AN AGREEMENT BETWEEN THE ISSUER AND SUCH HOLDER."
(mt) Such Seller has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchaser Common StockBuyer Warrants, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Such Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:
(i) understands that (A) the issuance of the Buyer Warrants hereunder is intended to be exempt from registration under the Securities Act and (B) there is only a limited market for such Buyer Warrants, and there can be no assurance that such Seller will be able to sell or dispose of the Buyer Warrants to be acquired by such Seller hereunder;
(ii) can afford to bear the economic risk of holding the Buyer Warrants acquired by such Seller hereunder for an indefinite period of time and can afford to suffer the complete loss of the investment by such Seller in the Buyer Warrants;
(iii) understands that the Buyer Warrants acquired by such Seller hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein and that for an indefinite period following the date hereof there will be no public market for the Buyer Warrants acquired by such Seller hereunder and that, accordingly, it may not be possible for such Seller to sell the Buyer Warrants acquired by such Seller hereunder in case of emergency or otherwise;
(iv) and its representatives, including to the extent it deems appropriate its professional, financial, tax and other advisors, have reviewed all documents provided to them in connection with the investment by such Seller hereunder in the Buyer Warrants by such Seller; and
(v) and its representatives have been given the opportunity to examine all documents and to ask questions of, and to receive answers from, Purchaser and its representatives concerning the terms and conditions of the acquisition hereunder of the Buyer Warrants by such Seller and related matters and to obtain all additional information which such Seller or its representatives deem necessary.
(u) No representation or warranty of such Seller contained in this Agreement and no statement contained in any certificate or schedule furnished or to be furnished by or on behalf of such Seller or any of its representatives pursuant thereto contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading or necessary in order to fully and fairly provide the information required to be provided in any such document, certificate or schedule.
Appears in 1 contract
Representations and Warranties by Sellers. 8.1 Each Seller, severally and not jointly, Seller represents and warrants to Purchaser (which as of the date hereof, and as of the Closing Date, solely with respect to each Seller’s Project, the following with the understanding that each of the representations and warranties shall survive the Closing are material and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below have been relied on by Purchaser in this Section 3.1 and in Section 10.15) that:connection herewith.
(a) Such The “Certified Rent Rolls” are attached hereto as Exhibit H, which consist of a rent roll, delinquency report and security deposit listing for each Project and will be updated to the Closing Dates, are and will be accurate and complete rent rolls describing each of the Tenant Leases. Other than as reflected on the Certified Rent Rolls, Sellers are not currently parties to any other leases, licenses or any similar occupancy agreements with respect to the leasing or occupancy of the Projects. Sellers represent and warrant that, except as noted on the Certified Rent Rolls or otherwise disclosed to Purchaser in writing, (i) the Tenant Leases are in full force and effect; (ii) there is no uncured monetary breach or monetary default on the part of any party under any of the Tenant Leases; (iii) no rent called for under the Tenant Leases has been paid more than thirty (30) days in advance of its due date; and (iv) the Tenants are not entitled to any concession, rebate, allowance, or period of occupancy free of rent under the Tenant Leases or any other agreement with Seller. To each Seller’s knowledge, the Tenant Leases have not been amended, modified, or supplemented in any way that has not been disclosed to Purchaser; the Tenant Leases furnished to Purchaser pursuant to this Agreement constitute all written agreements of any kind for the leasing, rental or occupancy of any portion of the Projects.
(b) Except for the Tenant Leases, there are no parties in possession of the portions of the Projects including, but not limited to, leases or tenants at sufferance. Sellers have no knowledge of any claims of adverse possession. There are no commissions due any broker, finder or any other person(s) under any of the Tenant Leases.
(c) Except as disclosed by Sellers in Exhibit I attached hereto, or discovered by Purchaser, Sellers, to Sellers’ knowledge, have not received any written notices from any governmental agency that the Projects or any condition existing thereon or any present use thereof violates any law or regulations applicable to the Projects. All necessary licenses operating permits for the communities are in good standing and transferrable. To Sellers’ knowledge, Sellers are not (i) identified on any governmental list, or otherwise qualifies as a prohibited person or (ii) in violation of any applicable law, rule or regulation relating to anti-money laundering or anti-terrorism, including without limitation, any applicable law, rule or regulation related to transaction business with prohibited persons or the requirements or any Anti-Terrorism Law. Seller agrees to update Exhibit I through and including the Closings.
(d) Except as otherwise disclosed in Exhibit J attached hereto, Sellers, to Seller’s knowledge, warrant and represent that there is no litigation, arbitration or other legal or administrative suit, action, proceeding or investigation of any kind pending or threatened in writing against or involving Sellers relating to the Projects or any part thereof, including, but not limited to, any condemnation action relating to the Projects or any part thereof. Sellers agree to update Exhibit J through and including the Closings..
(e) Except as otherwise disclosed in Exhibit K attached hereto, Sellers have no knowledge of any assessments, charges, paybacks, or obligations requiring payment of any nature or description against the Projects which remain unpaid, including, but not limited to, those for sewer, water or other utility lines or mains, sidewalks, streets or curbs. Sellers have no knowledge of any public improvements having been ordered, threatened, announced or contemplated with respect to the Projects which have not heretofore been completed, assessed and paid for.
(f) Exhibit B attached hereto contains a true and complete list of all Personal Property used in the operating of the Projects.
(g) True and complete copies of all Project Contracts and all amendments Disclosed in Exhibit M attached hereto have been delivered to Purchaser pursuant to Section 6.2 above.
(h) Each Seller has the full right, power, and authority, without the joinder of any other person or entity, to enter into, execute and deliver this Agreement, and to perform all duties and obligations imposed on each Seller under this Agreement, and neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which any Seller is a trust duly created party or by which any Seller or any of its assets are bound.
(i) Except as otherwise provided in the environmental reports and existing assessments ordered by Purchaser during the Investigation Period or provided by Sellers to Purchaser, to the best of each Seller’s knowledge, the Projects are free of and do not contain, any “toxic or hazardous substance”, asbestos, urea formaldehyde insulation, PCBs, radioactive material, flammable explosives, underground storage tanks, or any other hazardous or contaminated substance (collectively, the “Hazardous Materials”) prohibited, limited or regulated under the laws Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, or under any other applicable federal, state or local statutes, regulations or ordinances (collectively the “Environmental Laws”), and there are no substances or conditions in or on the Projects which may support a claim or cause of action under any of the State Environmental Laws. Sellers have no knowledge of Texas. Such any suit, action or other legal proceeding arising out of or related to any Environmental Laws with respect to the Projects which are pending or threatened before any court, agency or government authority, and Sellers have not received any notice that the Projects are in violation of the Environmental Laws.
(j) Each Seller has delivered or will deliver to Purchaser true and will have as correct copies of the Closing Defensible Title information and material referenced in Section 5.1 above.
(k) Sellers are not “foreign persons” as defined in Section 5.2Section1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
(l) To Sellers’ knowledge, the profit and loss statements for the Projects which were provided by Sellers to Purchaser are true and complete copies of the operating statements for such periods prepared by Sellers in the ordinary course of their business operations.
(m) Sellers have not received written notice from any insurance carrier of defects or inadequacies in the Property which, if uncorrected, would result in a termination of insurance coverage or a material increase in the premiums charged therefor.
(n) Sellers have not received, nor given, any written notice of any material violation of any recorded instrument relating to the Interests Projects which has not been cured or dismissed, nor does there exist any breach or default with respect to any of those exception items.
(o) Sellers warrant and represent that they will transfer and assign to Purchaser all of the oil, gas, coal and mineral rights Sellers may have, if any, including rights to Marcellus shale, Utica shale or other shale formations, that derive from, may be produced from or benefit the Projects, said transfers and assignments to be in a form acceptable for recording in the Official Records of the County where the land that is the subject of said rights is located. Notwithstanding the foregoing, Sellers are not warranting title to any oil, gas, coal or mineral rights with respect to the Projects and Purchaser acknowledges that it is relying solely on its subsurface title examination with respect to the presence, absence or extent of same.
(p) Purchaser is a publicly-traded real estate investment trust (REIT) and, as such, may be subject to an audit of the Projects’ operating income and expenses. For a period of twelve (12) months following the Closing, Sellers will reasonably comply with any such Sellerrequests for information and documentation made by the Purchaser or auditor; provided, however, as in no event shall Sellers be obligated to that portion expend any funds with respect to such audit. 8.2 As used in this Agreement, whenever the phrase “Seller’s knowledge”, “to Seller’s knowledge” or words of similar import are used, they shall be deemed to refer to facts within the Interests actual knowledge, without due inquiry, of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by H▇▇▇-only J▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company▇. ▇▇▇▇▇▇ and A▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and no others, such warranty is expressly limited at the times indicated only. Purchaser acknowledges and agrees that J▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and A▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ are acting solely as representatives of each Seller and not personally and that neither he nor she shall have any personal or individual liability whatsoever to claims arising byPurchaser, through whether based in law or equity, for any claim, action, courses of action, expense, or loss, or by reason of any statement, representation or action or inaction of Purchaser under such Seller or HHOC, Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successors, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain breach or default of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS").
(b) Such Seller has the full legal power, right and authority to carry on its business as presently conducted, to enter into this Agreement and to perform its obligations Purchaser under this Agreement.
(c) The execution, delivery and performance by such Seller of this Agreement and the documentation to be executed and delivered by such Seller at the Closing have been authorized by all necessary action on the part of such Seller. Execution, delivery and performance by such Seller of this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of the transactions contemplated by this Agreement will not, (i) violate or be in conflict with any (A) agreement, instrument, judgment, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement of any Seller or (ii) result in the creation of any lien or other encumbrance on the Interests of such Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution and delivery thereof by all parties thereto, legal, valid and binding obligations of such Seller enforceable according to their respective terms.
(e) No suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is pending or, to the knowledge of such Seller, threatened that might result in impairment or loss or diminution of the title of such Seller to the Interests of such Seller or otherwise adversely affect, in any material respect, any of the Interests of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Seller.
(f) Except for the Assignments of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-B, there are no contracts or agreements which burden or will burden or encumber or are otherwise material to the ownership of the Interests of such Seller.
(g) Such Seller is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-off.
(h) Such Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable.
(i) No consents or approvals of any third persons are required in connection with the transfer of the Interests of such Seller from such Seller to Purchaser and there are no preferential purchase rights applicable to the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement.
(j) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller.
(k) Such Seller is not a nonresident alien of the United States.
(l) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands that the transfer of any of such shares of Purchaser Common Stock by such Seller has not been registered under the Securities Act of 1933 (the "Securities Act") or the securities laws of any state and that such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such shares unless the transaction is subsequently registered under the Securities Act and the securities laws of relevant states or exemptions from such registrations are available. Such Seller further understands that the certificate or certificates representing such shares will bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF THE HOLDER) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR."
(m) Such Seller has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchaser Common Stock, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:
Appears in 1 contract
Representations and Warranties by Sellers. Each Seller, severally on its own ----------------------------------------- behalf and not jointlyas pertains only to such Seller and such Seller's respective interests being transferred hereunder, represents and warrants to Purchaser (which representations and warranties shall survive the Closing and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below in this Section 3.1 and in Section 10.15) BigHub that:
(a) Such a. Seller is a trust duly created and existing under the laws of the State of Texas. Such Seller has and will have as of the Closing Defensible Title (as defined in Section 5.2) to the Interests of such Seller; provided, however, as to that portion of the Interests of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by H▇▇▇-▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company, such warranty is expressly limited to claims arising by, through or under such Seller or HHOC, Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successorsis, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS").
(b) Such Seller has the full legal power, right and authority to carry on its business as presently conducted, to enter into this Agreement and to perform its obligations under this Agreement.
(c) The execution, delivery and performance by such Seller of this Agreement and the documentation to be executed and delivered by such Seller at the Closing have been authorized by all necessary action on the part of such Seller. Execution, delivery and performance by such Seller of this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of the transactions contemplated by this Agreement will not, (i) violate or be in conflict with any (A) agreement, instrument, judgment, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement of any Seller or (ii) result in the creation of any lien or other encumbrance on the Interests of such Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution the sole record and delivery thereof by all parties beneficial owner of the Shares, Company Options and/or Warrants, as the case may be, set forth opposite such Seller's name on Exhibit A, Exhibit B --------- --------- or Exhibit C hereto, as applicable; at the Closing, other than BigHub, no --------- person will have a right to acquire or direct the disposition, or hold a proxy or other right to vote or direct the vote, of such Shares, Company Options and/or Warrants; and Seller has, and at the Closing will have, good title to such Shares, Company Options and Warrants, free and clear of any agreements, restrictions, liens, adverse claims or encumbrances whatsoever. Other than this Agreement and the Company's redemption right with respect to the Company Preferred Stock there are, and at the Closing there will be, no option, warrant, right, call, proxy, agreement, commitment or understanding of any nature whatsoever, fixed or contingent, that directly or indirectly (i) calls for the sale, pledge or other transfer or disposition of any of such Shares, Company Options and Warrants, any interest therein or any rights with respect thereto, or relates to the voting, disposition, exercise, conversion or control of such Shares, Company Options and Warrants, or (ii) obligates Seller to grant, offer or enter into any of the foregoing.
b. The sale by Seller of such Shares, Company Options and Warrants and the delivery of the certificates representing such Shares, Company Options and Warrants to BigHub against receipt of payment therefor pursuant hereto will transfer to BigHub indefeasible title to such Shares, Company Options and Warrants, free and clear of all agreements, trusts, liens, adverse claims and encumbrances whatsoever.
c. Seller has the full right, power, authority and legal capacity to enter into this Agreement.
d. Seller does not require any consent, approval, authorization or order of any court or governmental agency or body in order to consummate the transaction contemplated herein
e. Neither the sale of the Shares, Company Options and Warrants being sold by the Seller nor the fulfillment of the terms hereof by Seller will conflict with, result in a breach or violation of, or constitute a default under any law or agreement or instrument to which Seller is a party or bound, or any judgment, order or decree applicable to Seller of any court, regulatory body, administrative agency, governmental body or arbitrator having the jurisdiction over the Seller.
f. No rights of first refusal exist with respect to any of the Shares, Warrants or Company Options or the issue and sale thereof, other than those which have been waived or satisfied.
g. This Agreement is a legal, valid and binding obligations obligation of such the Seller enforceable according to their respective against the Seller in accordance with its terms.
(e) No suith. The Seller is familiar with the business and financial condition, arbitrationproperties, inquiryoperations and prospects of the Company, proceedingand, audit, claim, demand or investigation is pending or, at a reasonable time prior to the knowledge Closing, has been afforded the opportunity to ask questions of such Sellerand receive satisfactory answers from the Company's officers and directors, threatened that might result in impairment or loss or diminution other persons acting on the Company's behalf, concerning the business and financial condition, properties, operations and prospects of the title of Company and has asked such Seller questions as he desires to ask and all such questions have been answered to the Interests of such Seller or otherwise adversely affect, in any material respect, any full satisfaction of the Interests of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Seller.
(f) Except for the Assignments of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-Bi. All documents, there are no contracts or agreements which burden or will burden or encumber or are otherwise material records and books pertaining to the ownership business and financial condition, properties, operations and prospects of the Interests of such Company which the Seller has requested have been made available to the Seller.
(g) Such j. The Seller is timely receiving its share of proceeds from understands that, unless the sale of Substances produced from or allocable Seller notifies BigHub in writing to the Leases without suspensecontrary before the Closing, counterclaim or set-off.
(h) Such all the representations and warranties of the Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by contained in this Agreement for which Purchaser shall will be liable.
(i) No consents or approvals of any third persons are required in connection with the transfer deemed to have been reaffirmed and confirmed as of the Interests of such Seller from such Seller to Purchaser and there are no preferential purchase rights applicable to Closing, taking into account all information received by the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement.
(j) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller.
(k) Such Seller is not a nonresident alien of the United States.
(l) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands that the transfer of any of such shares of Purchaser Common Stock by such Seller has not been registered under the Securities Act of 1933 (the "Securities Act") or the securities laws of any state and that such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such shares unless the transaction is subsequently registered under the Securities Act and the securities laws of relevant states or exemptions from such registrations are available. Such Seller further understands that the certificate or certificates representing such shares will bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF THE HOLDER) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATOR."
(m) Such Seller has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchaser Common Stock, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:
Appears in 1 contract
Representations and Warranties by Sellers. Each Seller, 2.1 Representations and Warranties: Sellers jointly and severally represent and not jointly, represents and warrants to Purchaser (which representations and warranties shall survive the Closing and the execution and delivery of the documentation to be executed and delivered at the Closing, to the extent provided below in this Section 3.1 and in Section 10.15) warrant that:
(a) Such Seller is a trust 2.1.1 Sellers are corporations, duly created organized, validly existing and existing in good standing under the laws of the State states of Texastheir organization. Such Seller has and will have as of the Closing Defensible Title (as defined in Section 5.2) to the Interests of such Seller; provided, however, as to that portion of the Interests of such Seller relating to South Timbalier Blocks 184 and 185 other than that acquired by H▇▇▇-▇▇▇▇▇▇▇ Oil Company ("HHOC") from CNG Producing Company, such warranty is expressly limited to claims arising by, through or under such Seller or HHOC, Notwithstanding the preceding sentence or any other provision of this Agreement to the contrary, for purposes of Section 9.6 and otherwise subsequent to the Closing, such Seller warrants and agrees to defend title to the Interests of such Seller unto Purchaser, its successors, and permitted assigns against the lawful claims of all persons or entities claiming or to claim the same or any part thereof by, through or under such Seller, but not otherwise. Except as set forth in Schedule 3.1(a), all prior assignments of interests in any of the Leases or other Interests in the chain of title to the Interests of such Seller have been approved by the United States of America, Department of Interior, Minerals Management Service (the "MMS").
(b) Such Seller has the full legal power, right and authority to carry on its business as presently conducted, to enter into this Agreement and to perform its obligations under this Agreement.
(c) The execution, delivery and performance by such Seller Sellers of this Agreement and the documentation transactions contemplated hereunder have been duly authorized by all requisite corporate actions on the part of Sellers and do not contravene or constitute a default or require the further consent of any person under any provision of applicable law or regulation or any agreement, judgment, injunction, order, decree or other instrument binding upon Sellers or to be which any of the MCN Program Assets are subject, other than (a) the approval of the Minerals Management Service to (i) the assignment of the Subject Leases to the Buyer and (ii) MCNOGP to hold leases (an application for which has been duly filed by MCNOGP with the Minerals Management Service and, to the best of MCNOGP's knowledge, such filing is complete) and (b) routine advance notice requirements contained in joint operating agreements. This Agreement has been duly executed and delivered by such Seller at Sellers, and constitutes, as does each of the Closing have been authorized documents and instruments executed by all necessary action one or more of the Sellers as the result hereof, a valid and binding agreement of each of the Sellers that is a party thereto enforceable in accordance with their terms.
2.1.2 There are no bankruptcy, reorganization or arrangement proceedings pending, being contemplated by or, to the best of Sellers' knowledge, threatened against Sellers that could adversely affect Sellers' ability to perform their obligations hereunder.
2.1.3 No broker or finder has acted for or on the part behalf of such Seller. Execution, delivery and performance by such Seller of Sellers in connection with this Agreement do not, and execution, delivery and performance by such Seller of the documentation to be executed and delivered by such Seller at the Closing will not, and the consummation of or the transactions contemplated by this Agreement will notAgreement, (i) violate and no broker or be finder is entitled to any brokerage or finder's fee or commission in conflict with respect thereof based on any (A) agreement, instrumentarrangement or understanding made by or on behalf of Sellers.
2.1.4 There are no demands, judgmentsuits, order, decree, law or regulation applicable to such Seller or the Interests of such Seller or (B) any provision of the trust agreement of any Seller or (ii) result in the creation of any lien actions or other encumbrance on the Interests of such Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered by such Seller at the Closing will be, upon execution and delivery thereof by all parties thereto, legal, valid and binding obligations of such Seller enforceable according to their respective terms.
(e) No suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is proceedings pending or, to the knowledge best of such SellerSellers' knowledge, threatened before any court or governmental agency against Sellers (or otherwise directly pertaining to the MCN Program Assets) that might result in an impairment or loss or diminution of the title of such Seller to the Interests of such Seller or otherwise adversely affect, in any material respect, any of the Interests MCN Program Assets or the value thereof or that might hinder or impede the operation of such Seller. There are no bankruptcy or reorganization proceedings pending or threatened against such Sellerthe MCN Program Assets.
(f) Except for 2.1.5 There have been no advance, take-or-pay, take-and-pay, forward selling arrangements or other payments made to Sellers or any other party that would obligate Sellers to deliver any gas produced from or attributable to the Assignments MCN Program Assets after the Effective Time without receiving full payment therefor at the then current market value.
2.1.6 To the best of Overriding Royalty Interest in favor of such Seller listed in Schedule 1-BSellers' knowledge, there are no contracts violations of any applicable laws, rules, regulations or agreements which burden orders of any governmental agency having jurisdiction over the MCN Program Assets that will affect in any material respect the value, use or will burden operation of the MCN Program Assets.
2.1.7 To the best of Sellers' knowledge, all royalty and other payments or encumber or are otherwise material obligations due by Sellers with respect to the ownership MCN Program Assets have been timely and properly paid or performed in full.
2.1.8 As of the Interests Effective Time, Sellers had received an approved assignment of such Sellerthe interests, or had earned or may earn under the terms of the MOXY/MCN Agreement the right to receive from MOXY an assignment of the interests, in each of the Subject Leases as set forth in the attached Exhibit "A." Sellers have not alienated the MCN Program Assets nor has either of them by its acts created, incurred or suffered to exist any lien or encumbrance upon the MCN Program Assets except for inchoate liens and encumbrances arising under any operating agreement affecting the MCN Program Assets or by operation of law in the ordinary course of the operation of the MCN Program Assets.
2.1.9 As of June 30, 1997, the outstanding balance of the Loan (gas that term is used in the MOXY/MCN Agreement) Such Seller is timely receiving its share $12,620,123.29 of proceeds from the sale unpaid principal and $97,358.40 of Substances produced from or allocable to the Leases without suspense, counterclaim or set-offaccrued and unpaid interest.
(h) Such Seller 2.1.10 There has incurred been no liability for brokers' or finders' fees related to the transactions contemplated material breach by this Agreement for which Purchaser shall be liable.
(i) No consents or approvals of any third persons are required in connection with the transfer of the Interests of such Seller from such Seller to Purchaser and there are no preferential purchase rights applicable to the sale of the Interests of such Seller by such Seller to Purchaser pursuant to this Agreement.
(j) During the period from the Effective Time to the date of execution of this Agreement, Such Seller has not waived, compromised or settled any claim that diminishes or adversely burdens any Interest of such Seller.
(k) Such Seller is not a nonresident alien of the United States.
(l) The shares of common stock of Purchaser, par value $0.01 per share (the "Purchaser Common Stock") representing the portion of the Stock Purchase Price allocable to such Seller to be acquired by such Seller pursuant to this Agreement are being acquired for the account of such Seller and without a view to distribution. Such Seller understands that the transfer Sellers of any of such shares the terms or conditions of Purchaser Common Stock by such Seller has not been registered under the Securities Act of 1933 (the "Securities Act") MCN Program Assets or the securities laws of any state and that such Seller cannot offer, sell, transfer, pledge, hypothecate or otherwise dispose of any or all of such shares unless the transaction is subsequently registered under the Securities Act and the securities laws of relevant states or exemptions from such registrations are available. Such Seller further understands that the certificate or certificates representing such shares will bear a legend substantially as follows, and agrees to comply with such legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL (WHO MAY BE AN EMPLOYEE OF THE HOLDER) REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NO REQUIRED UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE SECURITIES ADMINISTRATORSubject Leases."
(m) Such Seller has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchaser Common Stock, and such Seller is capable of bearing the economic risks of such investment. Each trustee of each Seller is an "Accredited Investor" within the meaning of Rule 501(a) of the Securities Act. Such Seller:
Appears in 1 contract
Sources: Purchase and Sale Agreement (McMoran Oil & Gas Co /De/)