Representations and Warranties by Seller. (i) Seller represents and warrants to Purchaser as follows: (a) Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has full power and authority to own the Assets and conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances. (b) The execution, delivery and performance of the Purchase Documents by Seller, and the consummation of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both: (i) violate any provision of law, statute, rule or regulation to which Seller is subject, (ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or (iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected. (c) All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms. (d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents. (e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration. (f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances. (g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party. (h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances. (i) Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database. (j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties. (k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Xstream Beverage Group Inc)
Representations and Warranties by Seller. (i) Effective as of the Closing Date, Seller hereby represents and warrants to Purchaser Buyer, which representations and warranties shall be accurate and true in all material respects, and acknowledges that Buyer is relying upon such representations and warranties in purchasing the Property, as follows:
(a) A. Seller is a corporation limited liability company duly organized organized, validly existing, and validly existing in good standing under the laws of the State of FloridaDelaware. Seller has full power and authority to own the Assets execute and conduct its business deliver this Agreement and that the Assets are owned free and clear all of all liabilities of any kind or nature without any liens or encumbrances.
(b) The executionSeller’s closing documents, delivery and performance of the Purchase Documents by Seller, and the consummation of to engage in the transactions contemplated herebyby this Agreement, will not with or and to perform and observe all of Seller’s obligations under this Agreement.
X. Xxxxxx and the persons signing this Agreement for Seller have the authority and power to sign this Agreement, to perform all of Seller’s obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Seller without the giving of notice consent or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition approval of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affectedperson.
(c) All necessary corporate action C. This Agreement has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the is a legal, valid and binding obligation of Seller instrument, enforceable against it Seller in accordance with their respective its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) Seller X. Xxxxxx is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, “foreign person” and is not subject to withholding within the meaning of Section 1445 of the Internal Revenue Code. Seller will execute and deliver to Buyer through and at the Close of Xxxxxx a non-foreign affidavit in form acceptable to Buyer.
E. Other than the Contracts, Seller has not entered into any collective bargaining agreementcontracts, for employeessubcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing.
X. Xxxxxx has not granted to any person or entity (other than Buyer under the Lease) any lease, license, or occupancy right with respect to the Property.
G. Seller has not adopted or entered into a plan of, liquidation, dissolution, merger, consolidation or other reorganization; or, or filed a petition in bankruptcy under any provisions of federal, state or provincial bankruptcy or insolvency law, or consented to the filing of any bankruptcy petition against it under any similar law.
X. Xxxxxx is not engaging in the transactions contemplated hereunder, directly or indirectly, in violation of any laws relating to drug trafficking, money laundering or predicate crimes to money laundering or drug trafficking. its business and The Property to be transferred to Buyer hereunder has not been derived from any unlawful activity with the result that the Assets are owned free and clear without any liens investment of direct or encumbrancesindirect equity owners in Seller is prohibited by laws or that the transactions contemplated hereunder or this Agreement is or will be in violation of laws.
(i) I. Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and not in violation of, has been provided charged with or is under indictment for the violation of, or has pled guilty to or been found guilty of the violation of, any requested informationlaws relating to anti-corruption, anti-bribery, terrorism, money laundering, drug-trafficking or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, Public Law 107-56, as amended, and Executive Order No. Seller has also reviewed 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the Buyer's filings “Executive Order”) (collectively, the “Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws”).
X. Xxxxxx is not acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information Annex to the Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be necessary amended from time to complete an audit time.
K. Neither Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List, and the monies used in accordance connection with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred amounts committed with respect thereto, were not and are not derived from any activities that contravene any of the Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws or any other applicable anti-money laundering or anti-bribery Laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in conjunction therewith any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)). All of the representations and warranties set forth herein shall survive the Closing and the delivery of the grant deed for a period of one (1) year. No claim for a breach of any representation or warranty shall be returned actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was known to Buyer or Buyer is deemed to know, including the existence of hazardous materials within the boundaries of the Property or within the improvements thereon; provided, however, that nothing herein shall relieve Buyer of any of its obligations under the Lease. As used in this provision, “deemed to know” has the following meaning: Buyer shall be deemed to know of the existence of a fact or circumstance to the respective parties.
(k) extent that such fact or circumstance would be known by an occupant of the Property. Notwithstanding anything herein to the contrary, Seller has paid all personal and intangible property taxes due as a shall not be deemed to be in breach of any representation or warranty set forth herein to the extent that such breach is caused by or the result of the ownership of the assets and there are no amounts due and owing for personal property a condition caused by Buyer or intangible property taxesany affiliate.
Appears in 1 contract
Sources: Lease Agreement (Faraday Future Intelligent Electric Inc.)
Representations and Warranties by Seller. (i) Seller hereby represents and warrants to Purchaser Buyer that the following are true and correct as followsof the date of the execution of this Agreement and that the following shall be true and correct as of the Closing:
(a) 4.1. Each of Seller is a corporation and Primasel are duly organized organized, validly existing, and validly existing in good standing under the laws of the State countries of Floridathe British Virgin Islands and Uruguay, respectively. Primasel is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which its business, as is now being conducted, shall require it to be so qualified. Seller has delivered to Buyer a true, complete, and correct copy of the organizational documents of Primasel as currently in effect.
4.2. Seller has full corporate power and authority to own execute and deliver this Agreement and to consummate the Assets transactions contemplated by it hereby. The execution and conduct its business and that the Assets are owned free and clear delivery of all liabilities of any kind or nature without any liens or encumbrances.
(b) The execution, delivery and performance of the Purchase Documents this Agreement by Seller, Seller and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
(c) All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents hereby have been duly and validly authorized, authorized by all necessary corporate action required on the part of Seller and this Agreement has been duly and validly executed and delivered by Seller and constitute Seller. This Agreement constitutes the legal, valid and binding obligation agreement of Seller Seller, enforceable against it Seller in accordance with their respective its terms.
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements4.3. There are no actions, including without limitation all amendmentssuits, modificationsinvestigations, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained proceedings at law or will be obtained. No consent of in equity by or before any court, governmental instrumentality, commission, or other agency now pending or threatened or against or affecting Seller or the Primasel Stock or any of their respective properties or rights, before any court, arbitrator, or administrative or governmental body which may result in an adverse change in the business or conditions, financial or otherwise, of Primasel. Further, Seller is not in default with respect to any order, writ, injunction, or decree of any court or any governmental agency or other public department.
4.4. No consent, approval, authorization, permit or license from any federal, state, or local regulatory authority is required as a condition in connection with Seller’s obligations with respect to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) transactions contemplated herein. Seller is not a party to or otherwise subject to any written contract or oral employment, agency agreement which restricts or commission agreement with otherwise affects Seller’s right or ability to undertake the transactions contemplated hereby or the performance of any of its employees that cannot be terminated upon the closing date respective terms. Seller’s execution of this transaction without penaltyAgreement will not violate any provision of law or any agreement previously entered into, other than those for which Seller shall obtain all required consents or waivers prior to Closing.
4.5. No tax liability, including without limitation, income tax liability, of any nature, is now past due or has been asserted against Primasel or the Primasel Stock by any taxing authority.
4.6. Neither this Agreement nor any other document, certificate, or statement furnished to Buyer by Seller or any partner, employee, directoror affiliate of Seller or, officer or stockholder (or any current or former family member thereof) to the best knowledge of Seller, either individually or by any third party in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved connection with the receipt transactions contemplated hereby, contains any untrue statement of restricted common stock. Seller has had an opportunity material fact or omits to discuss state a material fact necessary in order to make the operations of Buyer's business with management statements contained herein and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databasetherein not misleading.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Infosonics Corp)
Representations and Warranties by Seller. (i) Seller represents and warrants to Purchaser as follows(which representations and warranties shall survive Closing and the execution and delivery of the documentation to be executed and delivered at Closing, to the extent provided in Section 10.15) that:
(a) Seller is a corporation duly organized organized, existing and validly existing in good standing under the laws of the State of FloridaDelaware and is qualified to do business in, and is in good standing under the laws of, the State of Texas and each jurisdiction in which the failure to so qualify would have a material adverse effect on the Seller. Seller has full power is qualified under applicable laws and authority regulations to own the Acquired Assets. All prior assignments of interests in any of the Leases or other Acquired Assets that are pending approval by the United States of America, Department of Interior, Bureau of Land Management (the "BLM") are in proper form for approval by the BLM in accordance with the laws, rules, regulations and conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrancespractices applicable thereto.
(b) The 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) Subject to Section 6.01(g), the execution, delivery and performance by Seller of this Agreement and the documentation to be executed and delivered at Closing have been authorized by all necessary action, corporate and otherwise, on the part of Seller. Execution, delivery and performance by Seller of this Agreement do not and execution, delivery and performance by Seller of the Purchase Documents by Sellerdocumentation to be executed and delivered at Closing will not, and the consummation of the transactions contemplated herebyby this Agreement will not, will not violate or be in conflict with or without the giving of notice or the lapse of time or both:
any (i) violate any provision of lawagreement, statuteinstrument, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ decree, law or decree regulation applicable to which Seller is a party or by which it is the Acquired Assets or may be bound; or(ii) any provision of the articles of incorporation or bylaws of Seller.
(iiid) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered at Closing will be, upon execution and delivery thereof, legal, valid and binding obligations of Seller enforceable according to their respective terms.
(e) Except as set forth in Schedule 3.01(e), no suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is pending or, to the knowledge of Seller, threatened that might result in impairment or loss or diminution of the breach title of Seller to the Acquired Assets or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon otherwise adversely affect any of the Acquired Assets being purchased hereunderin any material respect. There are no bankruptcy or reorganization proceedings pending or, under to the corporate charter or bylaws knowledge of Seller, threatened against Seller or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
(c) All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance Affiliate of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms.
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To Schedule 1-B sets forth a list of the best following contracts, agreements or commitments to which the Acquired Assets are subject or by which Seller is bound with respect to the Acquired assets:
(i) any written contract or agreement with Seller or any Affiliate of Seller's knowledgeSeller relating to the provision of goods or services which will survive the Closing;
(ii) any contract, agreement or commitment that commits Seller has conducted and its business assigns to aggregate expenditures with respect to the Acquired Assets of more than $100,000 in compliance any calendar year, excluding (x) the Leases and any contracts or agreements creating interests or rights in the Acquired Assets, (y) joint operating agreements, and (z) unitization or pooling agreements;
(iii) any contract, agreement or commitment that commits Seller and its assigns to sell, process, transport or market any Substances excluding (x) any such contract, agreement or commitment which expires within six months or can be terminated by Seller and its assigns upon not more than six months' notice without penalty, (y) joint operating agreements and (z) unitization or pooling agreements;
(iv) any contract, agreement or commitment that restricts Seller and its assigns, as owners of any of the Acquired Assets, from competing with all applicable federalany third party in any geographic region or line of business; and
(v) any contract, state agreement or commitment that warrants the volume of production of Substances to be delivered by Seller and local laws, regulations and ordinancesits assigns from the Acquired Assets.
(g) To the extent Seller has not received any notice that it is infringing upon responsible for payment thereof and otherwise to the researchknowledge of Seller, developmentall rentals, processesroyalties, methodsshut-in royalties, techniquesoverriding royalties, inventions, know how patents, patent rights, trade name, trademarks taxes and service marks other payments due pursuant to or with respect to the Leases or the production of any other partySubstances therefrom or attributable thereto or revenue attributable to such production have been properly paid.
(h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon To the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) knowledge of Seller, either individually the Leases have been drilled, completed, operated, developed and produced in material compliance with all applicable judgments, orders, laws, rules and regulations. Except as set forth in Schedule 3.01(h), (i) all necessary certificates, consents, permits, licenses and other governmental authorizations affecting the Acquired Assets have been obtained and are in force, (ii) there are no outstanding violations of any applicable regulations, rules or in orders of the Federal Energy Regulatory Commission, the BLM, or any other capacity, has a claim of any kind against the Seller, and Seller has no obligation regulatory agency with respect to the Acquired Assets, (iii) the production status of each oil, gas, injection or disposal well included in the Acquired Assets (each a "Well") identified in Schedule 1-A as of the Effective Time and, to the best knowledge of Seller, as of the date of execution of this Agreement, is correctly reflected on such person or entity, except the right to current salary or wages, accrued vacation paySchedule, and reimbursable expenses arising (iv) there are no wells included in the ordinary course of business. Acquired Assets or located on the Leases that (X) Seller does not contribute is obligated, by applicable judgments, orders, laws, rules, regulations or contract, to currently plug and abandon or sponsor any employee welfare or benefit plans, and is not (B) are subject to any collective bargaining agreement, for employees. its business exceptions to a requirement to plug and that the Assets are owned free and clear without any liens or encumbrancesabandon issued by a governmental authority.
(i) Seller is not obligated, under a sophisticated investor and understands the risks and uncertainties involved with the receipt take-or-pay or similar arrangement, or by virtue of restricted common stock. Seller has had an opportunity election to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings non-consent or not participate in a past or current operation on the SEC EDGAR database.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 Net Revenue Interest described in Schedule 1-A.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable timely receiving its share of proceeds from the sale of Substances produced from or allocable to supply the requested information and Purchaser is unable Leases without suspense, counterclaim or set-off. There has been no production of Substances from or allocable to conclude an audit the Leases in excess of the Seller's business within 75 days allowable production established pursuant to applicable state or federal law or regulation that would result in a restriction on production of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned Substances from or allocable to the respective partiesLeases subsequent to the Effective Time.
(k) Except for Casualty Losses after the date of execution of this Agreement, which are covered by the provisions of Section 5.07, since January 1, 2002 no event has occurred and no condition exists which has, or could reasonably be expected to, materially adversely affected the value of the Acquired Assets or the ability of Purchaser to own, hold, develop and operate the Acquired Assets, except for 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 product pricing generally affecting the oil and gas industry
(l) Seller has paid incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable.
(m) Except as set forth in Schedule 3.01(m), 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 3.01(n), as of the Effective Time, no portion of the Acquired Assets is 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 Acquired Assets, regardless of whether such Imbalances arise at the platform, wellhead, pipeline, gathering system or other level and regardless of whether such Imbalances arise under Contract or otherwise.
(o) No consents or approvals of any third persons are required in connection with the transfer of the Acquired Assets from Seller to Purchaser other than the approval of the BLM and the consents listed in Schedule 3.01(o). Except as set forth in Schedule 3.01(o) there are no preference rights applicable to the sale of the Acquired Assets by Seller to Purchaser pursuant to this Agreement.
(p) Seller has obtained all personal permits, licenses and intangible property taxes 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 the Acquired Assets, 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"), and all of such Environmental Permits are in full force and effect and all fees and charges relating thereto have been paid. Seller is in compliance with all Environmental Laws and Environmental Permits applicable to the Acquired Assets, and the Acquired Assets are not subject to any material unfulfilled remedial obligations pursuant to Environmental Laws. 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 Acquired Assets or any investigation relating thereto.
(q) Seller is not a nonresident alien of the United States.
(r) Except as set forth on the Disclosure Schedule, (i) Seller owns or has the right to use without any limitations or restrictions (including without limitation restrictions related to transfers to, or use by, any individual, corporation, limited liability company, business trust, association, company, partnership, joint venture, governmental authority or other entity (each, a "Person")), the Seismic Data; (ii) the consummation of the transactions contemplated by this Agreement will not alter or impair any such rights or breach any agreements with third-party vendors or require payments of any additional sums to such Persons; and (iii) the manner in which Seller has actually used or copied such Seismic Data does not and has not infringed on the rights of any Person.
(s) All books, records and files of Seller pertaining to the Acquired Assets, to Seller's knowledge, fairly and accurately reflect the ownership, use, enjoyment and operation by Seller of its assets.
(t) The transfer of the Acquired Assets to the Purchaser is not being made with the actual intent to hinder, delay or defraud any creditor of Seller. The Purchase Price constitutes reasonably equivalent value in exchange for the sale of the Acquired Assets as such value has been determined on or prior to the Closing, will be determined by an independent, third party appraiser, selected by Seller prior to the Closing and Seller is not insolvent now and will not become insolvent on the Closing Date.
(u) Seller has delivered to Purchaser a copy of the report prepared by Garb, Grubb & Harris dated December 31, 2001. To the knowledge of Seller, the xxxxxal information furnished by Seller to Garb, Grubb & Harris for purposes of such report (including, without xxxxxatixx, xxoduction, volumes, decline curves, sales prices for production, reserve reports, contractual pricing provisions under oil or gas sales or marketing contracts under hedging arrangements, costs of operations and development, lease operating expenses, and working interest and net revenue information relating to Seller's ownership interests in properties) was true and correct in all material respects on the date of such reserve report; provided, however (i) the reserves included in such report are estimates only and should not be construed as exact quantities, (ii) such reserves may or may not be recovered and, if recovered, the revenues therefrom and the costs related thereto could be more or less than the estimated amounts, (iii) the sales rates, prices received for the reserves, and costs incurred in recovering such reserves may vary from assumptions included in such report due to governmental policies and uncertainties of supply and demand, and (iv) estimates of such reserves may increase or decrease as a result of the ownership future operations.
(v) Seller has no knowledge of the assets and there are no amounts due and owing for personal property breach of any representation, warranty, covenant or intangible property taxesagreement hereunder by Purchaser or of the failure of Purchaser to perform an obligation hereunder, other than such as have been disclosed in writing to Purchaser.
Appears in 1 contract
Representations and Warranties by Seller. (i) As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Purchaser Buyer that each and all of the following are true and correct as followsof the date of this Agreement and will be true and correct as of the date of Closing:
(a) Seller is a corporation duly organized and validly existing in good standing under the laws of the State of FloridaMinnesota; duly qualified to transact business in the State of Minnesota. Seller has full power and authority to own the Assets and conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
(b) The execution, delivery and performance of this Agreement, including the Purchase Documents documents, instruments and agreements to be executed and/or delivered by SellerSeller pursuant to this Agreement, and the consummation of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or hereby and thereby have been duly and validly authorized by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
(c) All all necessary corporate action has been taken on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against it Seller in accordance with their respective terms.
(b) Seller owns the Real Property, free and clear of all encumbrances, except the Existing Encumbrances identified on Exhibit F attached hereto (the "Existing Encumbrances").
(c) Seller owns the Personal Property, free and clear of all encumbrances, except those identified on Exhibit B.
(d) All consents and approval required for transferring the Assets There are no condemnation proceedings pending or, to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any courtknowledge, governmental agency or other public authority is required threatened as a condition to the enforceability of the Purchase Documentsdate of this Agreement with respect to all or any part of the Real Property.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens Except as otherwise described in Exhibit G attached hereto, no major or the subject matter of any known structural repairs have been performed, or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To to the best of Seller's knowledge, Seller has conducted its business without inquiry, have been necessary, with respect to the improvements on the Real Property during the two (2) years immediately preceding the date hereof. The physical condition of such improvements on the Closing Date will not differ in compliance with all applicable federal, state and local laws, regulations and ordinancesany material adverse respect from the condition of such improvements on the date of this Agreement.
(gf) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks Mechanic's Liens. All labor and service marks of any other party.
(h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has materials which have been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesProperty have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Representations and Warranties by Seller. (i) Seller represents and warrants to Purchaser as followsBuyer that:
(a) Seller is a corporation limited partnership duly organized formed and validly existing under the laws of the State of FloridaNorth Carolina. Seller has full power and authority to own enter into this Agreement, and to convey the Assets and conduct its business and that Project to Buyer in accordance with the Assets are owned free and clear terms of all liabilities of any kind or nature without any liens or encumbrancesthis Agreement.
(b) This Agreement and the documents to be delivered by Seller at Closing have been or will be duly authorized by all necessary partnership action on the part of Seller, and have been or will be duly executed and delivered by Seller.
(c) The execution, delivery execution and performance of the Purchase Documents this Agreement by Seller, and the consummation of the transactions Closing contemplated herebyhereunder, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of under, any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding agreement or instrument to which Seller is a party or by which it Seller is or may be bound or affected.
(c) All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective termsbound.
(d) All consents and approval required The Lease Schedule attached hereto as Exhibit B is a schedule of Existing Leases (“Lease Schedule”) for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modificationsProject, and supplementsis complete and correct in all material respects to the Knowledge of Seller. To the Knowledge of Seller, whether written or oral "Agreements" the Existing Leases are in full force and for performing effect, and true, correct and complete copies of same have been delivered to Seller as part of the Due Diligence Items. Except as indicated on the Lease Schedule: (a) to the Knowledge of Seller's , Seller has fulfilled in all material respects its duties and obligations in connection with the Existing Leases due prior to the date hereof; (b) to the Knowledge of Seller, Seller is not in default in any material respect under the Purchase Documents Existing Leases, and to the Knowledge of Seller no tenant under the Existing Leases is in default in any material respect under its Lease, (c) no tenant has provided a notice of default to Seller under its Lease that has not been cured, and (d) there are no leases, licenses or occupancy agreements with respect to the Project by or through Seller. All Security Deposits and Non-Cash Security Deposits held by Seller under Leases as of the Effective Date are as set forth on the Lease Schedule. No rebates, rental concessions, free rent periods, credits, setoffs or rent reductions relating to any period after the Closing Date have been obtained given under any Existing Lease except as set forth in the copies of the Existing Leases (and amendments thereto) included in the Due Diligence Items. All brokerage commissions with respect to Existing Leases that are the landlord’s responsibility due prior to the Effective Date have been paid, and except as permitted pursuant to Paragraph 6(e) or 11, there will be obtained. No consent no commissions pursuant to agreements by Seller that are the landlord’s responsibility payable with respect to renewals, extensions or expansions of or under any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase DocumentsExisting Lease.
(e) To the Knowledge of Seller, Seller acknowledges that has fulfilled in all material respects its duties and obligations in connection with the Assets being transferred per Schedule "A" are Service Agreements due prior to the date hereof, and Seller is not encumbered by in default in any liens or material respect under any of the subject matter terms and provisions of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate considerationService Agreements.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any written notice that it the Project is infringing upon in violation of applicable zoning or building codes, except for notices of violation that have been cured or otherwise addressed to the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks satisfaction of any other partythe issuer.
(hg) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon To the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) Knowledge of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary reflected in any environmental assessments included in the Due Diligence Items delivered to complete an audit Buyer, or undertaken by or on behalf of Buyer, the Real Property does not contain any Hazardous Materials (as defined below) in accordance with violation of applicable Environmental Laws (as defined below). As used in this paragraph, the term “Hazardous Materials” shall mean any hazardous wastes, hazardous substances, hazardous materials and toxic substances, as those rules terms are defined in Environmental Laws, and regulations prescribed by the Securities term “Environmental Laws” shall mean the Resource Conservation and Exchange Commission. In Recovery Act (42 U.S.C.A. §§ 6901 et seq.), the event that Seller is unable to supply Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.A. §§ 9601 et seq.), the requested information Hazardous Materials Transportation Act (49 U.S.C.A. §§ 1801 et seq.), the Toxic Substances Control Act (15 U.S.C.A. §§ 2601 et seq.), the Clean Air Act (42 U.S.C.A. §§ 7401 et seq.), and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesClean Water Act (33 U.S.C.A. §§ 1251 et seq.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Representations and Warranties by Seller. (i) Effective as of the date of this Agreement and as of the Closing Date, Seller hereby represents and warrants to Purchaser Buyer, which representations and warranties shall be accurate and true in all material respects on the Closing Date as if made on the Closing Date, and acknowledges that Buyer is relying upon such representations and warranties in purchasing the Properties, as follows:
(a) A. Seller is a corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the State of FloridaOhio. Seller has full power and authority to own the Assets execute and conduct its business deliver this Agreement and that the Assets are owned free and clear all of all liabilities of any kind or nature without any liens or encumbrances.
(b) The executionSeller’s closing documents, delivery and performance of the Purchase Documents by Seller, and the consummation of to engage in the transactions contemplated herebyby this Agreement, will not with or and to perform and observe all of Seller’s obligations under this Agreement.
B. Seller and the persons signing this Agreement for Seller have the authority and power to sign this Agreement, to perform all of Seller’s obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Seller without the giving of notice consent or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition approval of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affectedperson.
(c) All necessary corporate action C. This Agreement has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the is a legal, valid and binding obligation of Seller instrument, enforceable against it Seller in accordance with their respective its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) All consents D. Seller has and approval required for transferring on the Assets Closing Date will have good and marketable fee simple title to Purchaser hereunder and for assigning the agreementsProperties subject to the Permitted Exceptions; Seller shall not do, including without limitation all amendmentscommit, modifications, and supplements, whether allow to be done or fail to do anything that would have a material adverse effect on Seller’s title to or condition of the Properties.
E. Seller has not received any written or oral "Agreements" and for performing Seller's obligations under notification that the Purchase Documents have been obtained or will be obtained. No consent Properties are currently in violation of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local lawsstate, regulations and ordinancescounty or municipal land use, zoning, or other law, statute, ordinance, rule, regulation, administrative or judicial order, which have not either been previously cured or which will not be cured prior to Closing.
F. Other than: (gi) the Notice of Intent to acquire a pipeline easement over a portion of the Xxxxxx Xxxxx Land; and, (ii) the notice(s) regarding possible storm water assessments regarding the Ohio Properties, Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any proceedings in condemnation, nor any written offer to purchase all or any part of the Properties in lieu of condemnation, nor of any contemplated zoning change or other partyaction by any governmental body, authority or agency that will in any way materially affect the Properties including, but not limited to, the size of, use of, construction on or access to the Properties.
G. Seller shall maintain and operate the Properties from the date hereof until the Closing in its present condition, ordinary wear and tear excepted, which shall include maintaining existing policies of fire and casualty insurance on the Properties, and Seller shall not enter into any lease, rental agreement or contract without Buyer’s consent, which consent shall not be unreasonably withheld.
H. There is no litigation, dispute, action or claim against any person, whether pending or threatened, which may have a material adverse effect on the Properties.
I. There is no default under any agreement, contract, lease or other commitment, or any claim, demand, litigation, proceedings or governmental investigation pending or threatened against Seller relating to the Properties, which would materially and adversely affect the Properties.
J. To the best of Seller’s knowledge, the Properties are in substantial compliance with all federal, state and local laws relating to pollution or protection of the environment (h“Environmental Laws”) and there is no civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation, investigation, proceeding, notice or demand letter pending or threatened against Seller in respect of the Properties or the activities conducted thereon relating in any way to Environmental Laws; the Properties are free from underground storage tanks.
K. On the Closing Date there will be no parties with any rights of possession to the Properties other than Seller and Buyer.
L. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, “foreign person” and is not subject to any collective bargaining agreement, for employeeswithholding within the meaning of Section 1445 of the Code. its business Seller shall execute and that deliver to Buyer through and at the Assets are owned free and clear without any liens or encumbrancesClose of Escrow a non-foreign affidavit in form acceptable to Buyer.
(i) M. To the best of Seller’s knowledge, all of the information and documents prepared by Seller is and delivered or to be delivered to Buyer pursuant to this Agreement will be true and correct and do not and will not omit to state a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databasematerial fact.
N. The representations contained herein shall survive Closing for a period of one (j1) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesyear.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Representations and Warranties by Seller. (i) Seller represents makes the following representations and warrants to Purchaser warranties, each of which is true and correct as followsof the date hereof and as of the Closing Date:
(a) Seller is a corporation corporation, duly organized and organized, validly existing and in good standing under the laws of the State of FloridaMaryland. This Agreement has been duly authorized, executed and delivered by Seller has full power and authority to own constitutes the Assets valid and conduct legally binding obligation of Seller, enforceable against Seller in accordance with its business terms. This Agreement and that the Assets are owned free and clear transactions contemplated herein do not contravene any of all liabilities the respective provisions of any kind the Certificates of Incorporation or nature without any liens or encumbrancesBy-Laws of Seller.
(b) The execution, execution and delivery of this Agreement and all related documents and the performance of the Purchase Documents its obligations hereunder and thereunder by Seller, and the consummation of the transactions contemplated hereby, will Seller do not conflict with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule any law or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, a breach of or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunderterms, under the corporate charter conditions or bylaws or provisions of any other agreement, understanding material agreement or instrument to which Seller is a party or by which it Seller is or may be bound or affected.
(c) All necessary corporate action has been taken by any order or decree applicable to Seller, or result in the creation or imposition of any lien on any of its assets or property which would adversely affect the ability of Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms.
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's perform its obligations under the Purchase Documents have been this Agreement. Seller has obtained all consents, approvals, authorizations or will be obtained. No consent orders of any court, governmental agency or other public authority is body and of all Third Parties, if any, required as a condition to for the enforceability execution, delivery and performance by Seller of this Agreement and the consummation of the Purchase Documentstransactions contemplated hereby.
(c) Seller has not filed any petition seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief relating to Seller or any of its property under any law relating to bankruptcy or insolvency, nor has any such petition been filed against Seller. No general assignment of Seller’s property has been made for the benefit of creditors, and no receiver, master, liquidator or trustee has been appointed for Seller or any material portion of its property. Seller is not insolvent and the consummation of the transactions contemplated by this Agreement shall not render Seller insolvent.
(d) Seller is not a “foreign person” as defined in Section 1445 of the Code and the regulations promulgated thereunder.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date The provisions of this transaction without penalty. No employee, director, officer Section 4.1 shall survive the Closing or stockholder (or any current or former family member thereof) other termination of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrancesthis Agreement.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Representations and Warranties by Seller. (i) Seller hereby represents and warrants to Purchaser Buyer (which representations and warranties shall survive closing), as of the Effective Date, as follows:
(a) Seller is a corporation duly organized the sole owner and validly existing holder of the Note and the Seller is the sole beneficiary under the laws Deed of Trust and the State Loan Documents. The right, title, and interests of Florida. Seller has full power in the Note, the Deed of Trust and authority to own the Assets and conduct its business and that the Assets Loan Documents are owned free and clear of any and all liabilities liens, claims, or encumbrances whatsoever. Seller has not sold, transferred, assigned, conveyed, or encumbered all or any part of any kind such Seller’s right, title, or nature without any liens interest in, to, or encumbrancesunder the Note, the Deed of Trust or the Loan Documents. The Note is the sole obligation secured by the Deed of Trust and the Loan Documents.
(b) The executionTrue, delivery correct, and performance complete copies of the Purchase Documents by SellerNote and the Deed of Trust are attached hereto as Exhibits A and B, respectively. There are no written or oral amendments or modifications to, and no written or oral accommodations or other agreements relating to, the consummation Note, the Deed of the transactions contemplated hereby, will not with or without the giving of notice Trust or the lapse Loan Documents or the Borrower’s performance thereunder except as set forth in Exhibits A and B hereof.
(c) The Note, the Deed of time or bothTrust and the Loan Documents are each:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,in full force and effect;
(ii) violate any judgmentthe valid, order, writ or decree to which Seller is a party or by which it is or may be boundbinding obligations of the Borrower; orand
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
(c) All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it the Borrower in accordance with their respective terms. There has been no conduct, dealings, or other action by or between Seller and Borrower that could, with the passage of time or otherwise, give rise to any claim by the Borrowers that the Note and the Mortgage, as shown in Exhibits B and C, respectively, are not in full force and effect or the valid, binding, and enforceable obligations of the Borrower.
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations The Seller is not in default under the Purchase Documents have been obtained Note, the Deed of Trust or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Loan Documents.
(e) Seller acknowledges that The Borrower is not in default under the Assets being transferred per Schedule "A" are not encumbered by any liens Note, the Deed of Trust or the subject matter Loan Documents and to the best knowledge of any known Seller there is no event or anticipated litigation Seller further acknowledges and agrees circumstances in existence as of the Effective Date that would constitute a default of Borrower under the consideration paid by Buyer for Sellers' assets is fair and adequate considerationNote, the Deed of Trust or the Loan Documents with the passage of time.
(f) To As of the best Effective Date, the unpaid aggregate amount under the Note is $1,069,895.00, comprising:
(i) Unpaid principal in the amount of Seller's knowledge, Seller has conducted its business $ $958,000.00;
(ii) accrued interest in compliance with all applicable federal, state and local laws, regulations and ordinancesthe amount of $187,965.19; and
(iii) an interest credit in favor of Borrower in the amount of $76,070.20.
(g) When executed, this Agreement will be the valid, binding obligation of Seller, enforceable against Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other partyin accordance with its terms.
(h) Seller is not a party There are no actions or proceedings to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances.
(i) which Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commissionparty, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property threatened actions or intangible property taxesproceedings of which Seller is aware, that affect, in any manner whatsoever, Seller’s ability to perform its respective obligations under this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. (i) Seller represents makes the following representations and warrants warranties to Purchaser as followsBuyer:
(a) Seller is a corporation limited liability company, duly organized and organized, validly existing and in good standing under the laws of the State of Florida. Seller Delaware, is qualified to do business in the States of California and Utah and has full the legal power and authority to own the Assets and conduct its properties, to carry on its business as now being conducted and that to enter into this Agreement and, subject to the Assets are owned free receipt of the regulatory approvals, carry out the transactions contemplated hereby and clear of perform and carry out all liabilities of any kind or nature without any liens or encumbrancescovenants and obligations on its part to be performed under and pursuant to this Agreement.
(b) The execution, delivery and performance by Seller of the Purchase Documents this Agreement have been duly authorized by Sellerall necessary action, and do not and will not require any consent or approval of Seller’s managing member or equity holders other than that which has been obtained.
(c) The execution and delivery of this Agreement, the consummation of the transactions contemplated herebyhereby and the fulfillment of and compliance with the provisions of this Agreement, do not and will not conflict with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is constitute a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lienunder, security interest, charge or encumbrance upon any of the Assets being purchased hereunderterms, under the corporate charter conditions or bylaws provisions of any Requirement of Law, or any organizational documents, agreement, deed of trust, mortgage, loan agreement, other evidence of indebtedness or any other agreement, understanding agreement or instrument to which Seller is a party or by which it or any of its property is bound, or may be bound result in a breach of or affecteda default under any of the foregoing, and Seller has obtained or shall obtain all permits, licenses, approvals and consents of governmental authorities required for the lawful performance of its obligations hereunder. Further, Seller warrants that it shall maintain in good standing all permits, licenses, approvals, and consents of governmental authorities required for the lawful operation of the Facility in accordance with this Agreement, Prudent Utility Practices, and all Requirements of Law.
(cd) All necessary corporate action has been taken by Seller to authorize This Agreement constitutes the executionlegal, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective its terms.
(d) All consents and approval required for transferring , except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting the Assets to Purchaser hereunder and for assigning the agreementsenforcement of creditors’ rights generally or by general equitable principles, including without limitation all amendments, modifications, and supplements, regardless of whether written such enforceability is considered in a proceeding in equity or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documentsat law.
(e) There is no pending, or to the knowledge of Seller, threatened action or proceeding affecting Seller acknowledges that before any governmental authority, which purports to affect the Assets being transferred per Schedule "A" are not encumbered by any liens legality, validity or the subject matter enforceability of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate considerationthis Agreement.
(f) To Seller shall inform all investors in the best Seller of the existence of this Agreement on or before the date of such investment in the Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any notice that it been, is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other partywill be a Special Purpose Entity.
(h) Seller is has (i) not a party entered into this Agreement or any other documents related thereto with the actual intent to hinder, delay or defraud any written or oral employmentcreditor and (ii) received reasonably equivalent value in exchange for its obligations under this Agreement. No petition in bankruptcy has been filed against Seller, agency or commission agreement with and neither Seller nor any of its employees that cannot be terminated upon constituent Persons has ever made an assignment for the closing date benefit of this transaction without penalty. No employee, director, officer creditors or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim taken advantage of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or insolvency act for its benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrancesas a debtor.
(i) Seller is a sophisticated investor All of the assumptions made in the Non-Consolidation Opinion, including, but not limited to, any exhibits attached thereto, are true and understands the risks and uncertainties involved with the receipt of restricted common stockcorrect in all material respects. Seller has had an opportunity complied with all of the assumptions made with respect to discuss Seller in the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databaseNon-Consolidation Opinion.
(j) Sellex xxxll provide Buyer There are no mineral rights or interests underlying the Facility Premises or otherwise underlying any premises leased or acquired under the Leases and Property Agreements the development or exploration of which would interfere with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit construction or operation of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesFacility.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Sources: Power Purchase Agreement (First Wind Holdings Inc.)
Representations and Warranties by Seller. (i) Effective as of the date of this Agreement and as of the Closing Date, Seller hereby represents and warrants to Purchaser Buyer, which representations and warranties shall be accurate and true in all material respects on the Closing Date as if made on the Closing Date, and acknowledges that Buyer is relying upon such representations and warranties in purchasing the Property, as follows:
(a) A. Seller is a corporation limited liability company duly organized organized, validly existing, and validly existing in good standing under the laws of the State of FloridaDelaware. Seller has full power and authority to own the Assets execute and conduct its business deliver this Agreement and that the Assets are owned free and clear all of all liabilities of any kind or nature without any liens or encumbrances.
(b) The executionSeller's closing documents, delivery and performance of the Purchase Documents by Seller, and the consummation of to engage in the transactions contemplated herebyby this Agreement, will not with or and to perform and observe all of Seller's obligations under this Agreement.
B. Seller and the persons signing this Agreement for Seller have the authority and power to sign this Agreement, to perform all of Seller's obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Seller without the giving of notice consent or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition approval of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affectedperson.
(c) All necessary corporate action C. This Agreement has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the is a legal, valid and binding obligation of Seller instrument, enforceable against it Seller in accordance with their respective its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) D. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, "foreign person" and is not subject to any collective bargaining agreement, for employeeswithholding within the meaning of Section 1445 of the Internal Revenue Code. its business Seller will execute and that deliver to Buyer through and at the Assets are owned free and clear without any liens or encumbrancesClose of Escrow a non-foreign affidavit in form reasonably acceptable to Buyer.
E. There are no unrecorded leases (other than the Lease), and to Seller's knowledge, no written notice of violation has been issued with regard to any applicable regulation, ordinance, requirement, covenant, condition or restriction relating to the present use or occupancy of the Property by any person, authority or agency having jurisdiction.
F. There are no suits or claims pending with respect to or in any manner affecting the Property.
G. From the date hereof until Closing or the earlier termination of this Agreement, Seller shall (i) operate and maintain the Property in a manner generally consistent with the manner in which Seller has operated and maintained the Property prior to the date hereof, and shall perform in all material respects, its obligations under the Lease, (ii) not amend, modify or waive any material rights under the Lease, and (iii) maintain the existing or comparable insurance coverage, if any, for the Improvements which Seller is a sophisticated investor and understands obligated to maintain under the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databaseLease.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit I. All representations made in accordance with those rules this Agreement by Seller shall survive the execution and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit delivery of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and for a period of six (6) months following the Closing. Seller shall and does hereby indemnify against and hold Buyer harmless from any loss, damage, liability and expense, together with all assets transferred in conjunction therewith court costs and attorneys' fees which Buyer may incur, by reason of any material misrepresentation by Seller or any material breach of any of Seller's warranties. Seller's indemnity and hold harmless obligations herein shall be returned to survive for a period of six (6) months following the respective partiesClosing.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Credit Property Trust II Inc)
Representations and Warranties by Seller. (i) Seller represents and warrants to Purchaser as followsBuyer that:
(a) Seller is a corporation limited liability company duly organized and organized, validly existing and in good standing under the laws of the State of Florida. Seller Delaware, is qualified to do business in the State of California and has full the legal power and authority to own the Assets its properties, and conduct to carry on its business as now being conducted. Seller has the legal power and that authority to enter into this Agreement and, subject to the Assets are owned free receipt of additional regulatory approvals, to carry out the transactions contemplated hereby and clear of thereby, and to perform and carry out all liabilities of any kind or nature without any liens or encumbrancescovenants and obligations on its part to be performed under and pursuant to this Agreement.
(b) The Seller’s execution, delivery and performance of the Purchase Documents this Agreement has been duly authorized by all necessary limited liability company action, and does not and will not require any consent or approval of Seller’s managing member or equity holders other than that which has been obtained.
(c) Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Facility’s output delivered to Buyer qualifies under the requirements of RPS Law. To the extent a change in Requirements of Law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be a Default if Seller has used commercially reasonable efforts, subject to Section 8.7 of this Agreement, to comply with such change in Requirements of Law.
(d) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in Public Utilities Code sections 399.12(h) and 399.30, as it may be modified by subsequent legislation. To the extent a change in Requirements of Law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be a Default if Seller has used commercially reasonable efforts, subject to Section 8.7 of this Agreement, to comply with such change in Requirements of Law.
(e) The execution and delivery of this Agreement, the consummation of the transactions contemplated herebyhereby and thereby, and the fulfillment of and compliance with the provisions of this Agreement do not and will not conflict with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is constitute a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under any Requirement of Law applicable to Seller, or result in the creation or imposition any organizational documents, agreement, deed of any lientrust, security interestmortgage, charge or encumbrance upon any of the Assets being purchased hereunderloan agreement, under the corporate charter or bylaws or any other agreement, understanding agreement or instrument to which Seller is a party or by which it or any of its property is or may be bound or affectedbound.
(cf) All necessary corporate action has been taken by Seller to authorize This Agreement constitutes the executionlegal, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller Seller, enforceable against it in accordance with their respective its terms.
(d) All consents and approval required for transferring , except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting the Assets to Purchaser hereunder and for assigning the agreementsenforcement of creditors’ rights generally or by general equitable principles, including without limitation all amendments, modifications, and supplements, regardless of whether written such enforceability is considered in a proceeding in equity or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) Seller acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of Seller's knowledge, Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinancesat law.
(g) There is no pending, or to the knowledge of Seller, threatened action or proceeding affecting Seller has not received before any notice Governmental Authority that it is infringing upon purports to affect the researchlegality, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks validity or enforceability of any other partythis Agreement.
(h) Seller is not in violation of any Requirement of Law, which violations, individually or in the aggregate, would reasonably be expected to result in a party material adverse effect on the business, assets, operations, or condition (financial or otherwise) of Seller to any written or oral employment, agency or commission agreement with perform any of its employees that cannot be terminated upon the closing date of obligations under this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrancesAgreement.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved has not entered into this Agreement with the receipt of restricted common stockactual intent to hinder, delay or defraud any creditor, and Seller received reasonably equivalent value in exchange for its obligations under this Agreement. No petition in bankruptcy has been filed against any Seller, and Seller has had not made an opportunity to discuss assignment for the operations benefit of Buyer's business with management and has been provided with creditors or taken advantage of any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databaseinsolvency act for its benefit as a debtor.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange CommissionOTHER THAN THOSE WARRANTIES OR GUARANTEES EXPRESSLY SET FORTH IN THE TERMS OF THIS AGREEMENT, then in that eventNEITHER PARTY MAKES ANY WARRANTIES OR GUARANTIES OF ANY KIND WHATSOEVER, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesEXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY CUSTOM, TRADE USAGE, PROMISE, EXAMPLE OR DESCRIPTION, ALL OF WHICH WARRANTIES AND GUARANTIES ARE EXPRESSLY DISCLAIMED.
(k) Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
Appears in 1 contract
Sources: Power Purchase Agreement
Representations and Warranties by Seller. (i) 5.1. Seller represents and warrants to Purchaser as follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has full power and authority to own the Assets and conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
(b) B. The execution, delivery and performance of the Purchase Documents by Seller, and the consummation of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
(c) C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms.
(d) D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral ("Agreements" ") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
(e) E. Seller has good and merchantable title to all Assets and acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate considerationlitigation.
(f) F. To the best of Seller's knowledge, its knowledge Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances.
(g) G. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. its business and that the Assets are owned free and clear without any liens or encumbrances.
(i) Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR database.
(j) Sellex xxxll provide Buyer with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties.
(k) H. Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes.
I. There is (and has not been since its inception) no claim, litigation, action, suit or proceeding, administrative or judicial, pending or threatened against or affecting Seller, or involving any of the Assets, at law or in equity or before any foreign, federal, state, local or other governmental authority, including, without limitation, any claim, proceeding, or litigation for the purpose of enjoining or preventing the consummation of this Agreement, or the transactions contemplated hereby, or otherwise claiming this Agreement, or any of the transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to Seller's knowledge is there any basis upon which any such claim, litigation, action, suit or proceeding could be brought or initiated. Seller is not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction or decree of any court or any governmental authority, and no replevins, attachments, or executions have been issued or are now in force against Seller, except for the settlement agreement with UPS. No petition in bankruptcy or receivership has ever been filed by or against Seller.
Appears in 1 contract
Representations and Warranties by Seller. (i) Seller represents and warrants to Purchaser as Buyer at follows:
(a) Seller is a corporation duly organized and organized, validly existing an in good standing under the laws of the State of Florida. Seller has full power Illinois and authority is duly qualified to own transact business in the Assets and conduct its business and that the Assets are owned free and clear State of all liabilities of any kind or nature without any liens or encumbrancesIllinois.
(b) The execution, delivery Seller has the authority to enter into and performance of the Purchase Documents by Sellerperform its obligations under this Agreement, and there are no approvals, permits, authorizations or consents to this Agreement required under any judgment, order, writ, injuction, decree, ordinance, law, rule, regulation resolution or other instrument. Seller has supplied Buyer with copies of all required approvals, permits, authorizations and consents required for it to validly execute, deliver and perform this Agreement under each mortgage, indenture, note, contract, lease, instrument, agreement, judgment, decree, order license, permit and franchise to which Seller is a part or is bound, or under which the consummation of the transactions contemplated hereby, will hereby could cause a default; and there is not with term or without provision of the giving of notice foregoing which adversely affects the Business or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller Assets. This Agreement is a party or by which it valid and binding agreement of Seller and is or may be bound; or
(iii) to the knowledge of Seller, result enforceable against Seller in the breach of or conflict accordance with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or bylaws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affectedits terms and conditions.
(c) All necessary corporate action Seller has been taken by Seller delivered to authorize Buyer statements of profit and loss for the execution, delivery and performance 1995 fiscal year of the Purchase DocumentsBusiness, together with balance sheets for the Business as at the final day of each such fiscal year. The Purchase Documents All financial statements referred to above are correct and complete and fairly present the financial condition, assets and liabilities of the Business as at their respective dates, the results of its operations for such periods, and have (except as indicated in the compilation thereof) been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it prepared in accordance with their respective terms.
(d) All consents and approval required for transferring generally accepted accounting principles consistently maintained since the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral "Agreements" and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability beginning of the Purchase Documents.
(e) Seller acknowledges that periods above mentioned. Except for liabilities reflected in the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the consideration paid by Buyer for Sellers' assets is fair and adequate consideration.
(f) To the best of financial statements, to Seller's knowledge, Seller has no other liabilities, whether absolute or contingent, that are material to the Business.
(d) Except as may be caused by the announcement of the proposed sale and purchase of the Assets as contemplated by this Agreement, since December 31, 1995, there has not been:
(i) any change in the financial or other condition, assets, liabilities or operation of the Business, except changes in the ordinary course of business, none of which individually or in the aggregate has been materially adverse;
(ii) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the Business, or the Assets;
(iii) any material change in the accounting policies of the Business or any write up of the book value of any of the Assets.
(e) Exhibits A through E present a true and complete description of all agreements, equipment and other operating assets of Seller which are useful or necessary in the conduct of the Business as it has been conducted its business in compliance with the past.
(f) Seller has good and marketable title to all applicable federalthe Assets, state and local lawsincluding those reflected in Seller's balance sheet (except as since disposed of in the ordinary course of business), regulations and ordinancessubject to no mortgage, pledge, lien, restriction, claim, liability, encumbrance or security interest, except for encumbrances disclosed on such balance sheet.
(g) Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
(h) Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) All of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, 's Good Accounts Receivable have been incurred and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising are collectible in the ordinary course of business. There are no refunds, reimbursements, discounts or other adjustments payable by Seller does not contribute and there are no deposits held by Seller which may in the future become due to Seller's customers except as disclosed in writing to Seller by Buyer in a Exhibit D to this Agreement. There are no defenses, rights or sponsor any employee welfare setoffs, assignments, pledges, liens, encumbrances, claims, equities or benefit plans, and is not subject conditions enforceable by third parties with respect to any collective bargaining agreement, Seller's Good Accounts Receivable.
(h) Seller has no distribution agreements or contracts for employees. its business and that future purchase of goods or rendition of services other than the Assets are owned free and clear without any liens or encumbrancesagreement entered into with Buyer for these products.
(i) Except as disclosed by Seller to Buyer, there is a sophisticated investor and understands no judgment, action, litigation, proceeding or investigation pending or, to the risks and uncertainties involved knowledge of Seller threatened, before any court or governmental agency with respect to Seller or affecting any of the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of Buyer's business with management and has been provided with any requested information. Seller has also reviewed the Buyer's filings on the SEC EDGAR databaseAssets, whether or not fully covered by insurance.
(j) Sellex xxxll provide Buyer with such financial information Seller has made no agreement or taken no action which may cause anyone to become entitle to a commission as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit a result of the Seller's business within 75 days of closing as prescribed transaction contemplated by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective partiesAgreement.
(k) Seller is in compliance with all laws, regulations, orders, judgments, decrees or other mandates of any court or other agency or tribunal applicable to the Business.
(l) Seller has timely paid and will timely pay all personal federal and intangible property state taxes due as a result of any kind that are shown or will be shown on all returns, reports or statements filed or to be filed ("Returns") and the ownership Returns correctly reflect or will correctly reflect the facts regarding the income, Business and Assets of the assets and there are no amounts due and owing for personal property or intangible property taxesSeller.
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