Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement and will be true and correct as of the date of Closing: (a) Seller is duly organized and in good standing under the laws of the State of Minnesota; duly qualified to transact business in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against 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) There are no condemnation proceedings pending or, to Seller's knowledge, threatened as of the date of this Agreement with respect to all or any part of the Real Property. (e) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or to the best of Seller's knowledge, 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 any material adverse respect from the condition of such improvements on the date of this Agreement. (f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement Effective Date and will be true and correct the Closing Date as of the date of Closingfollows:
(ai) Seller is a corporation partnership duly organized formed and in good standing validly existing under the laws of the State of Minnesota; duly qualified Georgia, is authorized to transact do business in the State of Minnesota. The executionGeorgia, delivery and the execution and performance of this Agreement will not violate any term of its organizational or charter documents.
(ii) Seller has full power, right and authority to enter into and perform its obligations under this Agreement, including . All of the documents, instruments and agreements documents to be executed and/or delivered by Seller pursuant to this Agreementat the Closing will be authorized and properly executed and constitute, or will constitute, as appropriate, the valid and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part binding obligations of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against Seller in accordance with their respective terms.
(biii) Except as may be disclosed in Seller’s Disclosure Schedules, Exhibit F-1, Seller owns has not received any written notice from any governmental authority of a violation of any governmental requirements (including environmental laws) on the Real Property, free and clear of all encumbranceswhich violation, except the Existing Encumbrances identified on Exhibit F attached hereto (the "Existing Encumbrances")if any, has not been cured.
(c) Seller owns the Personal Property, free and clear of all encumbrances, except those identified on Exhibit B.
(d) There are no condemnation proceedings pending or, to Seller's knowledge, threatened as of the date of this Agreement with respect to all or any part of the Real Property.
(eiv) Except as otherwise described may be disclosed in Seller’s Disclosure Schedules, Exhibit G attached heretoF-1, no major or structural repairs have been performed, or to the best of Seller's knowledge, without inquiry, have been necessarySeller has not received, with respect to the improvements on Property, written notice from any party regarding any change to the Real Property during zoning classification, any condemnation or proceedings or proceedings to widen or realign any street or highway adjacent to the two (2) years immediately preceding the date hereof. The physical condition of such improvements on the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date of this AgreementProperty.
(fv) Mechanic's Liens. All labor Seller is not a “foreign person” within the meaning of Sections 1445 and materials which have been provided 7701 the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder at the time of reference thereto (hereinafter, the “Code”).
(vi) Except as may be disclosed in Seller’s Disclosure Schedules, Exhibit F-1, Seller has not received from any governmental authority written notice of any material violation of any building, fire or health code or any other statute applicable to the Property have which has not been fully paid for or will not be fully paid forcured prior to Closing.
(vii) Except as may be disclosed in Seller’s Disclosure Schedules, Exhibit F-1, Seller has not received any written notice regarding any actual or alleged violation of any Environmental, Health and Safety Requirements, or will be fully paid forany liabilities or potential liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations, relating to any of them or its facilities arising under Environmental, Health and Safety Requirements, which violation, if any, has not been cured. As used herein, “Environmental, Health and Safety Requirements” shall mean all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law and all judicial and administrative orders and determinations, and all contractual obligations concerning public health and safety, worker health and safety, and pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any Hazardous Materials, each as in effect on or prior to the Closing DateClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each Purchaser (which representations and all warranties shall survive Closing and the execution and delivery of the following are true documentation to be executed and correct as of delivered at Closing, to the date of this Agreement and will be true and correct as of the date of Closingextent provided in Section 10.15) that:
(a) Seller is a corporation duly organized organized, existing and in good standing under the laws of the State of Minnesota; duly Delaware and is qualified to transact do business in, and is in good standing under the laws of, the State of MinnesotaTexas and each jurisdiction in which the failure to so qualify would have a material adverse effect on the Seller. The Seller is qualified under applicable laws and 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 practices applicable thereto.
(b) 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, including Agreement and the documents, instruments and agreements documentation to be executed and/or 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 pursuant of this Agreement do not and execution, delivery and performance by Seller of the documentation to this Agreementbe executed and delivered at Closing will not, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on this Agreement will not, violate or be in conflict with any (i) agreement, instrument, judgment, order, decree, law or regulation applicable to Seller or the part Acquired Assets or (ii) any provision of the articles of incorporation or bylaws of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against 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) There are no condemnation proceedings pending orSubject to laws and equitable principles affecting the rights of creditors, to Seller's knowledge, threatened as of the date of this Agreement with respect is and the documentation to all or any part be executed and delivered at Closing will be, upon execution and delivery thereof, legal, valid and binding obligations of the Real PropertySeller enforceable according to their respective terms.
(e) Except as otherwise described set forth in Exhibit G attached heretoSchedule 3.01(e), no major suit, arbitration, inquiry, proceeding, audit, claim, demand or structural repairs have been performedinvestigation is pending or, or to the best knowledge of Seller's knowledge, without inquirythreatened that might result in impairment or loss or diminution of the title of Seller to the Acquired Assets or otherwise adversely affect any of the Acquired Assets in any material respect. There are no bankruptcy or reorganization proceedings pending or, have been necessaryto the knowledge of Seller, threatened against Seller or any Affiliate of Seller.
(f) Schedule 1-B sets forth a list of the following contracts, agreements or commitments to which the Acquired Assets are subject or by which Seller is bound with respect to the improvements on Acquired assets:
(i) any written contract or agreement with Seller or any Affiliate of Seller relating to the Real Property during provision of goods or services which will survive the two Closing;
(2ii) years immediately preceding any contract, agreement or commitment that commits Seller and its assigns to aggregate expenditures with respect to the date hereof. The physical condition Acquired Assets of such improvements on the Closing Date will not differ more than $100,000 in any material adverse respect 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 any third party in any geographic region or line of business; and
(v) any contract, agreement or commitment that warrants the volume of production of Substances to be delivered by Seller and its assigns from the condition Acquired Assets.
(g) To the extent Seller is responsible for payment thereof and otherwise to the knowledge of Seller, all rentals, royalties, shut-in royalties, overriding royalties, taxes and other payments due pursuant to or with respect to the Leases or the production of Substances therefrom or attributable thereto or revenue attributable to such improvements on production have been properly paid.
(h) To the knowledge of Seller, 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 orders of the Federal Energy Regulatory Commission, the BLM, or any other 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 Schedule, and (iv) there are no wells included in the Acquired Assets or located on the Leases that (▇) Seller is obligated, by applicable judgments, orders, laws, rules, regulations or contract, to currently plug and abandon or (B) are subject to exceptions to a requirement to plug and abandon issued by a governmental authority.
(i) Seller is not obligated, under a take-or-pay or similar arrangement, or by virtue of an election to non-consent or not participate in a past or current operation on the Leases pursuant to applicable operating agreements, to produce Substances, or allow Substances to be produced, without receiving full payment at the time of delivery in an amount that corresponds to the Net Revenue Interest described in Schedule 1-A.
(j) Seller is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-off. There has been no production of Substances from or allocable to the Leases in excess of the allowable production established pursuant to applicable state or federal law or regulation that would result in a restriction on production of Substances from or allocable to the Leases subsequent to the Effective Time.
(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 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.
(fp) Mechanic's Liens. All labor Seller has obtained all permits, licenses and materials 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 provided paid. Seller is in compliance with all Environmental Laws and Environmental Permits applicable to the Property have 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 fully paid for determined on or prior to the Closing, will be fully paid fordetermined by an independent, or will be fully paid forthird 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 ▇▇▇▇▇al information furnished by Seller to Garb, Grubb & Harris for purposes of such report (including, without ▇▇▇▇▇ati▇▇, ▇▇oduction, 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 future operations.
(v) Seller has no knowledge of the breach of any representation, warranty, covenant or agreement 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. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct Effective as of the date of this Agreement and will be true and correct as of the date of ClosingClosing Date, Seller hereby represents and warrants to 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 limited liability company duly organized organized, validly existing, and in good standing under the laws of the State of Minnesota; duly qualified Delaware. Seller has full power and authority to transact business execute and deliver this Agreement and all of Seller's closing documents, to engage in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered transactions contemplated by Seller pursuant to this Agreement, and to perform and observe all of Seller's obligations under this Agreement.
B. Seller and the consummation 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 transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements documents required to be executed and/or signed and delivered by Seller pursuant to this without the consent or approval of any other person.
C. This Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder is a legal, valid and thereunder are or will be upon such execution or delivery validbinding instrument, legally binding, and enforceable against Seller in accordance with their respective its terms.
(b) Seller owns the Real Property, free and clear of all encumbrances, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the Existing Encumbrances identified on Exhibit F attached hereto enforcement of creditors' rights generally; and (the "Existing Encumbrances"ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) D. Seller owns is not a "foreign person" and is not subject to withholding within the Personal Property, free meaning of Section 1445 of the Internal Revenue Code. Seller will execute and clear deliver to Buyer through and at the Close of all encumbrances, except those identified on Exhibit B.Escrow a non-foreign affidavit in form reasonably acceptable to Buyer.
(d) E. There are no condemnation proceedings pending orunrecorded leases (other than the Lease), and to Seller's knowledge, threatened as 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 obligated to maintain under the Lease.
I. All representations made in this Agreement by Seller shall survive the execution and delivery of 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 respect to all court costs and attorneys' fees which Buyer may incur, by reason of any material misrepresentation by Seller or any part material breach of the Real Property.
(e) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or to the best any of Seller's knowledge, without inquiry, have been necessary, with respect to warranties. Seller's indemnity and hold harmless obligations herein shall survive for a period of six (6) months following 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 any material adverse respect from the condition of such improvements on the date of this AgreementClosing.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Credit Property Trust II Inc)
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct Effective as of the date of this Agreement and will be true and correct as of the date of ClosingClosing Date, Seller hereby represents and warrants to 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 in good standing under the laws of the State of Minnesota; duly qualified Ohio. Seller has full power and authority to transact business execute and deliver this Agreement and all of Seller’s closing documents, to engage in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered transactions contemplated by Seller pursuant to this Agreement, and to perform and observe all of Seller’s obligations under this Agreement.
B. Seller and the consummation 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 transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements documents required to be executed and/or signed and delivered by Seller pursuant to this without the consent or approval of any other person.
C. This Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder is a legal, valid and thereunder are or will be upon such execution or delivery validbinding instrument, legally binding, and enforceable against Seller in accordance with their respective its terms.
(b) Seller owns the Real Property, free and clear of all encumbrances, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the Existing Encumbrances identified on Exhibit F attached hereto enforcement of creditors’ rights generally, and (the "Existing Encumbrances"ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) D. Seller owns has and on the Personal PropertyClosing Date will have good and marketable fee simple title to the Properties subject to the Permitted Exceptions; Seller shall not do, free and clear of all encumbrancescommit, except those identified allow to be done or fail to do anything that would have a material adverse effect on Exhibit B.
(d) There are no condemnation proceedings pending or, Seller’s title to Seller's knowledge, threatened as or condition of the date Properties.
E. Seller has not received any written notification that the Properties are currently in violation of this Agreement with respect any applicable federal, state, county 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: (i) the Notice of Intent to acquire a pipeline easement over a portion of the ▇▇▇▇▇▇ ▇▇▇▇▇ Land; and, (ii) the notice(s) regarding possible storm water assessments regarding the Ohio Properties, Seller has not received any notice of any proceedings in condemnation, nor any written offer to purchase all or any part of the Real PropertyProperties in lieu of condemnation, nor of any contemplated zoning change or other action 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.
(e) Except as otherwise described G. Seller shall maintain and operate the Properties from the date hereof until the Closing in Exhibit G attached heretoits 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 major litigation, dispute, action or structural repairs claim against any person, whether pending or threatened, which may have been performeda 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 ’s knowledge, without inquirythe Properties are in substantial compliance with all federal, have been necessarystate and local laws relating to pollution or protection of the environment (“Environmental Laws”) and there is no civil, with 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 improvements on the Real Property during the two (2) years immediately preceding the date hereof. The physical condition of such improvements on 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 “foreign person” and is not subject to withholding within the meaning of Section 1445 of the Code. Seller shall execute and deliver to Buyer through and at the Close of Escrow a non-foreign affidavit in form acceptable to Buyer.
M. To the best of Seller’s knowledge, all of the information and documents prepared by Seller and delivered or to be delivered to Buyer pursuant to this Agreement will be true and correct and do not and will not differ in any omit to state a material adverse respect from the condition of such improvements on the date of this Agreementfact.
N. The representations contained herein shall survive Closing for a period of one (f1) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Dateyear.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement and will be true and correct as of the date of Closinghereof:
(a) Seller is a corporation duly organized incorporated, validly existing and in good standing under the laws of the State of Minnesota; Washington and has the requisite power and authority to own its assets and properties and carry on its business as is now being conducted. The Holding Subsidiaries are corporations duly qualified to transact business incorporated, validly existing and in good standing under the laws of the State of MinnesotaColorado and have the requisite power and authority to own their assets and properties and carry on their businesses as now being conducted. The executionHolding Subsidiaries are wholly-owned subsidiaries of Seller, delivery the Holding Company Stock represents all of the issued and performance outstanding shares of this Agreement, including capital stock of the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this AgreementHolding Subsidiaries, and the Holding Subsidiaries have no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Holding Subsidiaries, shares of any class of their capital stock.
(b) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary requisite corporate action on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations constitutes a valid and binding agreement of Seller hereunder and thereunder are or will be upon such execution or delivery validSeller, legally binding, and enforceable against Seller in accordance with their respective its terms.
(bc) The Holding Company Stock is owned beneficially and of record by Seller, has been duly authorized and validly issued and is fully paid and non-assessable and was not issued in violation of any applicable securities laws or the preemptive or similar rights of any other person. The Telewest Shares are owned beneficially by MUKC and MCPH. Each of MUKC and MCPH has good and valid title to the Telewest Shares it owns, free of any pledge, security interest, lien, charge, encumbrance, pre-emptive right, proxy, voting trust, agreement, equity, claim or option of whatever nature, except that the Telewest Shares are subject to the terms and provisions of the Deed Poll, dated July 7, 2000, and the Deed Poll, dated September 21, 2000 (together, the “Deed Polls”), and the Revised New Relationship Agreement, dated as of March 3, 2000, among Seller, Liberty Media International, Inc., Liberty UK Holdings, Inc., Liberty UK, Inc. and Telewest, as amended (the “Relationship Agreement”). Upon delivery of the certificate(s) for the Holding Company Stock at the Closing against receipt by Seller owns of the Real PropertyPurchase Price, Seller will pass to Buyer good and valid title to the Holding Company Stock, free and clear of all encumbrancesany pledge, except security interest, lien, charge, encumbrance, pre-emptive right, proxy, voting trust, agreement, equity, claim, option, restriction on transfer or voting or other defect in title or other third party right whatsoever, assuming the Existing Encumbrances identified on Exhibit F attached hereto (the "Existing Encumbrances")representation set forth in Section 4(g) is accurate.
(c) Seller owns the Personal Property, free and clear of all encumbrances, except those identified on Exhibit B.
(d) There are no condemnation proceedings pending or, The Telewest Shares shall cease to Seller's knowledge, threatened as be subject to the terms and provisions of the date of this Deed Polls and the Relationship Agreement concurrent with respect to all or any part of the Real PropertyClosing, assuming the representation set forth in 4(g) is accurate.
(e) Except as otherwise described The execution, delivery and performance of this Agreement by Seller do not (i) conflict with or result in Exhibit G attached heretoany breach of any provision of the organizational documents of Seller, no major MUKC or structural repairs have been performedMCPH, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, or require any consent under, any indenture, license, contract, agreement or other instrument or obligation to which Seller, MUKC or MCPH is a party, other than complying with Section 8 of the best Relationship Agreement or (iii) violate any order, writ, injunction, decree or award rendered by any governmental or regulatory authority or court, domestic or foreign (a “Governmental Entity”) or violate any statute, rule or regulation (collectively, “Laws”) applicable to Seller, MUKC or MCPH or require any filing with, or the obtaining of Seller's knowledgeany permit, without inquiryauthorization, have been necessaryconsent or approval of, with any Governmental Entity; it being understood that no representation or warranty is being made in this Section 3(e)(iii) in respect to of the improvements on competition laws of the Real Property during the two (2) years immediately preceding the date hereof. The physical condition European Union or of such improvements on the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date of this Agreementother country or jurisdiction.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for No agent, broker, investment banker, financial advisor or other person or entity is or will be fully paid forentitled, by reason of any agreement, act or statement by Seller or any of its affiliates or any representative of Seller to any financial advisory, broker’s, finder’s or similar fee or commission, to reimbursement of expenses or to indemnification or contribution in connection with the transactions contemplated hereby.
(g) Other than the Telewest Shares, neither Seller nor any of its controlled affiliates beneficially owns any equity securities or securities convertible into any equity securities (or any interest in any such securities) of Telewest as of the date hereof; it being understood that no representation is being given herein with respect to any purchases that may have been effected by any outside manager of Seller acting in its discretionary capacity. Neither Seller nor any affiliate of Seller that at the relevant time is acting “in concert” with Seller (within the meaning of the U.K. City Code), including, without limitation, the Holding Subsidiaries, has acquired any direct or indirect beneficial ownership interest in any securities of Telewest, including, without limitation, any Ordinary Shares or Limited Shares, during the 12 month-period ending on the date hereof; it being understood that no representation is being given herein with respect to any purchases that may have been effected by (i) any director or officer in his or her individual capacity or by his or her personal investment vehicles or (ii) any outside manager of Seller acting in its discretionary capacity.
(h) The Telewest Shares are the only assets owned by the Holding Subsidiaries. Neither of the Holding Subsidiaries has any liabilities or obligations of a nature thatwould be material to either of the Holding Subsidiaries, as the case maybe, other than stamp duty tax or other similar transfer tax imposed on either of the Holding Subsidiaries, as a result of the transactions contemplated by this Agreement; it being understood that, with respect to any liabilities or obligations relating to taxes imposed on the business or operations of the Holding Subsidiaries, this representation is only given with respect to such liabilities or obligations imposed after July 7, 2000.
(i) Since January 1, 2001, each of the Holding Subsidiaries is in compliance with all Laws in respect of the conduct of its business and ownership, possession and maintenance of its assets, except for such noncompliance which would not have a material adverse effect on the condition, financial or otherwise, or will be fully paid foron the business affairs of either of the Holding Subsidiaries, as the case may be.
(j) Neither Holding Subsidiary has any employees. The officers and directors of each Holding Subsidiary immediately prior to the Closing Dateare identified on Exhibit B hereto.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement and will be true and correct as of the date of Closingat follows:
(a) Seller is a corporation duly organized and organized, validly existing an in good standing under the laws of the State of Minnesota; Illinois and is duly qualified to transact business in the State of Minnesota. The execution, delivery Illinois.
(b) Seller has the authority to enter into and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to perform 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 could cause a default; and thereby have been duly and validly authorized by all necessary corporate action on there is not term or provision of the part of Sellerforegoing which adversely affects the Business or the Assets. This Agreement is a valid and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date binding agreement of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and is enforceable against Seller in accordance with their respective terms.
(b) Seller owns the Real Property, free its terms and clear of all encumbrances, except the Existing Encumbrances identified on Exhibit F attached hereto (the "Existing Encumbrances")conditions.
(c) Seller owns has delivered to Buyer statements of profit and loss for the Personal Property1995 fiscal year of the Business, free together with balance sheets for the Business as at the final day of each such fiscal year. All financial statements referred to above are correct and clear complete and fairly present the financial condition, assets and liabilities of all encumbrancesthe Business as at their respective dates, the results of its operations for such periods, and have (except those identified on Exhibit B.
(das indicated in the compilation thereof) There are no condemnation proceedings pending orbeen prepared in accordance with generally accepted accounting principles consistently maintained since the beginning of the periods above mentioned. Except for liabilities reflected in the financial statements, to Seller's knowledge, threatened 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 date proposed sale and purchase of the Assets as contemplated by this Agreement with respect to all 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 part write up of the Real Propertybook value of any of the Assets.
(e) Except 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 otherwise described it has been conducted in Exhibit G attached heretothe past.
(f) Seller has good and marketable title to all the Assets, including those reflected in Seller's balance sheet (except as since disposed of in the ordinary course of business), subject to no major mortgage, pledge, lien, restriction, claim, liability, encumbrance or structural repairs have been performedsecurity interest, or to the best except for encumbrances disclosed on such balance sheet.
(g) All of Seller's knowledge, without inquiry, Good Accounts Receivable have been necessaryincurred and are collectible in the ordinary course of business. There are no refunds, reimbursements, discounts or other adjustments payable by Seller 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 setoffs, assignments, pledges, liens, encumbrances, claims, equities or conditions enforceable by third parties with respect to Seller's Good Accounts Receivable.
(h) Seller has no distribution agreements or contracts for future purchase of goods or rendition of services other than the improvements on agreement entered into with Buyer for these products.
(i) Except as disclosed by Seller to Buyer, there is no judgment, action, litigation, proceeding or investigation pending or, to the Real Property during knowledge of Seller threatened, before any court or governmental agency with respect to Seller or affecting any of the two Assets, whether or not fully covered by insurance.
(2j) years immediately preceding Seller has made no agreement or taken no action which may cause anyone to become entitle to a commission as a result of the date hereof. The physical condition of such improvements on the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date of transaction contemplated by this Agreement.
(fk) Mechanic's Liens. All labor and materials which have been provided 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 Property have been fully Business.
(l) Seller has timely paid for and will timely pay all federal and state taxes of any kind that are shown or will be fully paid forshown on all returns, reports or statements filed or to be filed ("Returns") and the Returns correctly reflect or will be fully paid forcorrectly reflect the facts regarding the income, prior to the Closing DateBusiness and Assets of Seller.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of makes the following are representations and warranties, each of which is true and correct as of the date of this Agreement hereof and will be true and correct as of the date of ClosingClosing Date:
(a) Seller is a corporation, duly organized organized, validly existing and in good standing under the laws of the State of Minnesota; duly qualified to transact business in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of SellerMaryland. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and constitutes the obligations valid and legally binding obligation of Seller hereunder and thereunder are or will be upon such execution or delivery validSeller, legally binding, and enforceable against Seller in accordance with their its terms. This Agreement and the transactions contemplated herein do not contravene any of the respective termsprovisions of the Certificates of Incorporation or By-Laws of Seller.
(b) The execution and delivery of this Agreement and all related documents and the performance of its obligations hereunder and thereunder by Seller owns do not conflict with any provision of any law or regulation to which Seller is subject, or conflict with or result in a breach of or constitute a default under any of the Real Propertyterms, free conditions or provisions of any material agreement or instrument to which Seller is a party or by which Seller is bound or 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 perform its obligations under this Agreement. Seller has obtained all consents, approvals, authorizations or orders of any court, governmental agency or body and clear of all encumbrancesThird Parties, except if any, required for the Existing Encumbrances identified on Exhibit F attached hereto (execution, delivery and performance by Seller of this Agreement and the "Existing Encumbrances")consummation of the transactions contemplated hereby.
(c) Seller owns 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 Personal Propertybenefit of creditors, free and clear no receiver, master, liquidator or trustee has been appointed for Seller or any material portion of all encumbrances, except those identified on Exhibit B.its property. Seller is not insolvent and the consummation of the transactions contemplated by this Agreement shall not render Seller insolvent.
(d) There are no condemnation proceedings pending or, to Seller's knowledge, threatened Seller is not a “foreign person” as defined in Section 1445 of the date of this Agreement with respect to all or any part of Code and the Real Propertyregulations promulgated thereunder.
(e) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or to the best The provisions of Seller's knowledge, 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 this Section 4.1 shall survive the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date or other termination of this Agreement.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each (which representations and all of the following are true and correct warranties shall survive closing), as of the date of this Agreement and will be true and correct Effective Date, as of the date of Closingfollows:
(a) Seller is duly organized the sole owner and in good standing holder of the Note and the Seller is the sole beneficiary under the laws Deed of Trust and the Loan Documents. The right, title, and interests of Seller in the Note, the Deed of Trust and the Loan Documents are free and clear of any and all liens, claims, or encumbrances whatsoever. Seller has not sold, transferred, assigned, conveyed, or encumbered all or any part of such Seller’s right, title, or interest in, to, or under 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) True, correct, and complete copies of the State Note and the Deed of Minnesota; duly qualified to transact business in the State of MinnesotaTrust are attached hereto as Exhibits A and B, respectively. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this AgreementThere 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 Trust or the Loan Documents or the Borrower’s performance thereunder except as set forth in Exhibits A and B hereof.
(c) The Note, the Deed of Trust and the Loan Documents are each:
(i) in full force and effect;
(ii) the valid, binding obligations of the transactions contemplated hereby Borrower; and
(iii) enforceable against the Borrower in accordance with their respective terms. There has been no conduct, dealings, or other action by or between Seller and thereby have been duly and validly authorized Borrower that could, with the passage of time or otherwise, give rise to any claim by all necessary corporate action on the part of Seller. This Agreement Borrowers that the Note and the documentsMortgage, instruments as shown in Exhibits B and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been C, respectively, are not in full force and effect or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable obligations of the Borrower.
(d) The Seller is not in default under the Note, the Deed of Trust or the Loan Documents.
(e) The Borrower is not in default under the Note, the Deed of Trust or the Loan Documents and to the best knowledge of Seller there is no event or circumstances in existence as of the Effective Date that would constitute a default of Borrower under the Note, the Deed of Trust or the Loan Documents with the passage of time.
(f) As of the Effective Date, the unpaid aggregate amount under the Note is $1,069,895.00, comprising:
(i) Unpaid principal in the amount of $ $958,000.00;
(ii) accrued interest in the 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 in accordance with their respective its 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.
(dh) There are no condemnation actions or proceedings pending orto which Seller is a party, to Seller's knowledgeand there are no threatened actions or proceedings of which Seller is aware, threatened as of the date of this Agreement with respect to all or any part of the Real Property.
(e) Except as otherwise described in Exhibit G attached heretothat affect, no major or structural repairs have been performed, or to the best of Seller's knowledge, 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 any material adverse respect from the condition of such improvements on the date of manner whatsoever, Seller’s ability to perform its respective obligations under this Agreement.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct that, except as of the date of this Agreement and will may be true and correct as of the date of Closingdisclosed in Seller's Diligence Deliveries:
(a) The execution and delivery by Seller is of, and Seller's performance under this Agreement are within Seller's powers and have been duly organized authorized by all requisite parties, and that the person executing this Agreement on behalf of Seller has the authority to do so.
(b) This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable in good standing under the laws of the State of Minnesota; duly qualified to transact business in the State of Minnesota. The executionaccordance with its terms.
(c) Execution, delivery and performance of this AgreementAgreement will not result in any breach of, including the documentsor constitute any default under, instruments and agreements any existing agreement or other instrument to which Seller is a party or by which Seller might be executed and/or delivered by Seller pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against Seller in accordance with their respective termsbound.
(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) There To Seller's knowledge, there are no unrecorded leases, liens or easements affecting title to the Property.
(e) To Seller's knowledge, Seller has received no notice, nor is Seller aware of, any material violation of any agreement, judicial order, statute or governmental regulation applicable to the Property.
(f) To Seller's knowledge, no hazardous substances (as defined by CERCLA) exist on the Property.
(g) To Seller's knowledge, there is no pending condemnation proceedings pending orproceeding with respect to any portion of the Property.
(h) Other than this Agreement, Seller has not entered into any sales contracts for the sale of all or any portion of the Property and, to Seller's knowledge, threatened as there are no unrecorded agreements, options, or rights of the date of this Agreement with respect first refusal to purchase all or any part portion of the Real PropertyProperty which have not been otherwise disclosed by Seller to Buyer herein.
(ei) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or to the best of To Seller's knowledge, without inquirythere are no actions or proceedings pending to liquidate, have been necessaryreorganize, with respect place in bankruptcy, or dissolve Seller and no such actions are contemplated by Seller. As used herein, the phrase "to Seller's knowledge" shall mean that such statement is true and correct to the improvements on current actual knowledge of E. ▇▇▇▇▇▇▇ ▇▇▇▇▇, without any requirement as to review of the Real Property during personal files of ▇▇. ▇▇▇▇▇ or any other files of Seller or any affiliate of Seller. Seller shall not intentionally engage in any conduct which reasonably could be expected to cause any of the two (2) years immediately preceding the date hereof. The physical condition of such improvements on the Closing Date will not differ foregoing representations and warranties to be untrue in any material adverse respect from as of the condition of such improvements on the date of this AgreementClosing.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for or will be fully paid for, or will be fully paid for, prior to the Closing Date.
Appears in 1 contract
Sources: Commercial Land Purchase and Sale Agreement (Applied Molecular Evolution Inc)
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement and will be true and correct as of the date of Closinghereof:
(a) Seller is a corporation duly organized incorporated, validly existing and in good standing under the laws of the State of Minnesota; Washington and has the requisite power and authority to own its assets and properties and carry on its business as is now being conducted. The Holding Subsidiaries are corporations duly qualified to transact business incorporated, validly existing and in good standing under the laws of the State of MinnesotaColorado and have the requisite power and authority to own their assets and properties and carry on their businesses as now being conducted. The executionHolding Subsidiaries are wholly-owned subsidiaries of Seller, delivery the Holding Company Stock represents all of the issued and performance outstanding shares of this Agreement, including capital stock of the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this AgreementHolding Subsidiaries, and the Holding Subsidiaries have no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Holding Subsidiaries, shares of any class of their capital stock.
(b) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary requisite corporate action on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations constitutes a valid and binding agreement of Seller hereunder and thereunder are or will be upon such execution or delivery validSeller, legally binding, and enforceable against Seller in accordance with their respective its terms.
(bc) The Holding Company Stock is owned beneficially and of record by Seller, has been duly authorized and validly issued and is fully paid and non-assessable and was not issued in violation of any applicable securities laws or the preemptive or similar rights of any other person. The Telewest Shares are owned beneficially by MUKC and MCPH. Each of MUKC and MCPH has good and valid title to the Telewest Shares it owns, free of any pledge, security interest, lien, charge, encumbrance, pre-emptive right, proxy, voting trust, agreement, equity, claim or option of whatever nature, except that the Telewest Shares are subject to the terms and provisions of the Deed Poll, dated July 7, 2000, and the Deed Poll, dated September 21, 2000 (together, the “Deed Polls”), and the Revised New Relationship Agreement, dated as of March 3, 2000, among Seller, Liberty Media International, Inc., Liberty UK Holdings, Inc., Liberty UK, Inc. and Telewest, as amended (the “Relationship Agreement”). Upon delivery of the certificate(s) for the Holding Company Stock at the Closing against receipt by Seller owns of the Real PropertyPurchase Price, Seller will pass to Buyer good and valid title to the Holding Company Stock, free and clear of all encumbrancesany pledge, except security interest, lien, charge, encumbrance, pre-emptive right, proxy, voting trust, agreement, equity, claim, option, restriction on transfer or voting or other defect in title or other third party right whatsoever, assuming the Existing Encumbrances identified on Exhibit F attached hereto (the "Existing Encumbrances")representation set forth in Section 4(g) is accurate. .
(c) Seller owns the Personal Property, free and clear of all encumbrances, except those identified on Exhibit B.
(d) There are no condemnation proceedings pending or, The Telewest Shares shall cease to Seller's knowledge, threatened as be subject to the terms and provisions of the date of this Deed Polls and the Relationship Agreement concurrent with respect to all or any part of the Real PropertyClosing, assuming the representation set forth in 4(g) is accurate.
(e) Except as otherwise described The execution, delivery and performance of this Agreement by Seller do not (i) conflict with or result in Exhibit G attached heretoany breach of any provision of the organizational documents of Seller, no major MUKC or structural repairs have been performedMCPH, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, or require any consent under, any indenture, license, contract, agreement or other instrument or obligation to which Seller, MUKC or MCPH is a party, other than complying with Section 8 of the best Relationship Agreement or (iii) violate any order, writ, injunction, decree or award rendered by any governmental or regulatory authority or court, domestic or foreign (a “Governmental Entity”) or violate any statute, rule or regulation (collectively, “Laws”) applicable to Seller, MUKC or MCPH or require any filing with, or the obtaining of Seller's knowledgeany permit, without inquiryauthorization, have been necessaryconsent or approval of, with any Governmental Entity; it being understood that no representation or warranty is being made in this Section 3(e)(iii) in respect to of the improvements on competition laws of the Real Property during the two (2) years immediately preceding the date hereof. The physical condition European Union or of such improvements on the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date of this Agreementother country or jurisdiction.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for No agent, broker, investment banker, financial advisor or other person or entity is or will be fully paid forentitled, by reason of any agreement, act or statement by Seller or any of its affiliates or any representative of Seller to any financial advisory, broker’s, finder’s or similar fee or commission, to reimbursement of expenses or to indemnification or contribution in connection with the transactions contemplated hereby.
(g) Other than the Telewest Shares, neither Seller nor any of its controlled affiliates beneficially owns any equity securities or securities convertible into any equity securities (or any interest in any such securities) of Telewest as of the date hereof; it being understood that no representation is being given herein with respect to any purchases that may have been effected by any outside manager of Seller acting in its discretionary capacity. Neither Seller nor any affiliate of Seller that at the relevant time is acting “in concert” with Seller (within the meaning of the U.K. City Code), including, without limitation, the Holding Subsidiaries, has acquired any direct or indirect beneficial ownership interest in any securities of Telewest, including, without limitation, any Ordinary Shares or Limited Shares, during the 12 month-period ending on the date hereof; it being understood that no representation is being given herein with respect to any purchases that may have been effected by (i) any director or officer in his or her individual capacity or by his or her personal investment vehicles or (ii) any outside manager of Seller acting in its discretionary capacity.
(h) The Telewest Shares are the only assets owned by the Holding Subsidiaries. Neither of the Holding Subsidiaries has any liabilities or obligations of a nature thatwould be material to either of the Holding Subsidiaries, as the case maybe, other than stamp duty tax or other similar transfer tax imposed on either of the Holding Subsidiaries, as a result of the transactions contemplated by this Agreement; it being understood that, with respect to any liabilities or obligations relating to taxes imposed on the business or operations of the Holding Subsidiaries, this representation is only given with respect to such liabilities or obligations imposed after July 7, 2000.
(i) Since January 1, 2001, each of the Holding Subsidiaries is in compliance with all Laws in respect of the conduct of its business and ownership, possession and maintenance of its assets, except for such noncompliance which would not have a material adverse effect on the condition, financial or otherwise, or will be fully paid foron the business affairs of either of the Holding Subsidiaries, as the case may be.
(j) Neither Holding Subsidiary has any employees. The officers and directors of each Holding Subsidiary immediately prior to the Closing Dateare identified on Exhibit B hereto.
Appears in 1 contract
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate Effective as of the transaction contemplated herebyClosing Date, Seller hereby represents and warrants to Buyer, which representations and warranties shall be accurate and true in all material respects, and acknowledges that Buyer that each is relying upon such representations and all of warranties in purchasing the following are true and correct Property, as of the date of this Agreement and will be true and correct as of the date of Closingfollows:
(a) A. Seller is a limited liability company duly organized organized, validly existing, and in good standing under the laws of the State of Minnesota; duly qualified Delaware. Seller has full power and authority to transact business execute and deliver this Agreement and all of Seller’s closing documents, to engage in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered transactions contemplated by Seller pursuant to this Agreement, and to perform and observe all of Seller’s obligations under this Agreement.
▇. ▇▇▇▇▇▇ and the consummation 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 transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements documents required to be executed and/or signed and delivered by Seller pursuant to this without the consent or approval of any other person.
C. This Agreement have has been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder is a legal, valid and thereunder are or will be upon such execution or delivery validbinding instrument, legally binding, and enforceable against Seller in accordance with their respective its terms.
(b) Seller owns the Real Property, free and clear of all encumbrances, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the Existing Encumbrances identified on Exhibit F attached hereto enforcement of creditors’ rights generally, and (the "Existing Encumbrances"ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) Seller owns ▇. ▇▇▇▇▇▇ is not a “foreign person” and is not subject to withholding within the Personal Property, free and clear meaning of all encumbrances, except those identified on Exhibit B.
(d) There are no condemnation proceedings pending or, to Seller's knowledge, threatened as Section 1445 of the date Internal Revenue Code. Seller will execute and deliver to Buyer through and at the Close of this Agreement with respect ▇▇▇▇▇▇ a non-foreign affidavit in form acceptable to all or any part of the Real PropertyBuyer.
E. Other than the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing.
▇. ▇▇▇▇▇▇ has not granted to any person or entity (eother than Buyer under the Lease) Except as otherwise described in Exhibit G attached heretoany lease, no major or structural repairs have been performedlicense, or to the best of Seller's knowledge, without inquiry, have been necessary, occupancy right with respect to the improvements on 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 Real Property during filing of any bankruptcy petition against it under any similar law.
▇. ▇▇▇▇▇▇ is not engaging in the two (2) years immediately preceding the date hereoftransactions 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. The physical condition Property to be transferred to Buyer hereunder has not been derived from any unlawful activity with the result that the investment of such improvements on direct or indirect equity owners in Seller is prohibited by laws or that the Closing Date will not differ in any material adverse respect from the condition of such improvements on the date of transactions contemplated hereunder or this Agreement.
(f) Mechanic's Liens. All labor and materials which have been provided to the Property have been fully paid for Agreement is or will be fully paid forin violation of laws.
I. Seller is not in violation of, has been charged with or is under indictment for the violation of, or will be fully paid forhas pled guilty to or been found guilty of the violation of, prior any laws 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. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the “Executive Order”) (collectively, the “Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws”).
▇. ▇▇▇▇▇▇ is not acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the 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 amended from time to 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 connection with this Agreement and 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 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 Dateand 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 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 extent that such fact or circumstance would be known by an occupant of the Property. Notwithstanding anything herein to the contrary, Seller 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 a condition caused by Buyer or any affiliate.
Appears in 1 contract
Sources: Lease Agreement (Faraday Future Intelligent Electric Inc.)
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants to Buyer that each and all of the following are true and correct as of the date of this Agreement and will be true and correct as of the date of Closingthat:
(a) Seller is a limited partnership duly organized formed and in good standing validly existing under the laws of the State of Minnesota; duly qualified North Carolina. Seller has full power and authority to transact business in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to enter into this Agreement, and to convey the consummation Project to Buyer in accordance with the terms of this Agreement.
(b) This Agreement and the transactions contemplated hereby and thereby documents to be delivered by Seller at Closing have been or will be duly and validly authorized by all necessary corporate partnership action on the part of Seller. This Agreement , and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against 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")Seller.
(c) The execution and performance of this Agreement by Seller, and the Closing contemplated hereunder, will not result in the breach of any provision of, or constitute a default under, any agreement or instrument to which Seller owns the Personal Property, free and clear of all encumbrances, except those identified on Exhibit B.is a party or by which Seller is bound.
(d) There The Lease Schedule attached hereto as Exhibit B is a schedule of Existing Leases (“Lease Schedule”) for the Project, and is complete and correct in all material respects to the Knowledge of Seller. To the Knowledge of Seller, the Existing Leases are in full force and 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, 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 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 condemnation proceedings pending orleases, licenses or occupancy agreements with respect to the Project by or through Seller's knowledge, threatened . All Security Deposits and Non-Cash Security Deposits held by Seller under Leases as of the date 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 given under any Existing Lease except as set forth in the copies of this Agreement the Existing Leases (and amendments thereto) included in the Due Diligence Items. All brokerage commissions with respect to all 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 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 part of the Real PropertyExisting Lease.
(e) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or to To the best Knowledge of Seller's knowledge, without inquiry, have been necessary, Seller has fulfilled in all material respects its duties and obligations in connection with respect the Service Agreements due prior 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 , and Seller is not differ in default in any material adverse respect from under any of the condition terms and provisions of such improvements on the date of this AgreementService Agreements.
(f) Mechanic's Liens. All labor and materials which Seller has not received any written notice that the Project is in violation of applicable zoning or building codes, except for notices of violation that have been provided cured or otherwise addressed to the Property have been fully paid for or will satisfaction of the issuer.
(g) To the Knowledge of Seller, except as may be fully paid forreflected in any environmental assessments included in the Due Diligence Items delivered to Buyer, or will be fully paid forundertaken by or on behalf of Buyer, prior to the Closing DateReal Property does not contain any Hazardous Materials (as defined below) in 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 terms are defined in Environmental Laws, and the term “Environmental Laws” shall mean the Resource Conservation and Recovery Act (42 U.S.C.A. §§ 6901 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.A. §§ 9601 et seq.), the 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 the Clean Water Act (33 U.S.C.A. §§ 1251 et seq.).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Representations and Warranties by Seller. As an inducement for Buyer to enter into this Agreement and consummate the transaction contemplated hereby, Seller hereby represents and warrants that Seller, and the individuals signing this Agreement on behalf of Seller, have the full legal power, authority, and right to Buyer that each execute and deliver, and to perform their legal obligations under this Agreement, and Seller’s performance hereunder and the transactions contemplated hereby, have been duly authorized by all requisite action on the part of Seller, and no remaining corporate action is required to make this Agreement binding on Seller. Subject to the limitations set forth in the Sections hereof entitled “No Other Representations and Warranties by Seller” and “Seller Indemnity,”Seller hereby represents and warrants that, except as set forth in Exhibit D attached hereto and incorporated herein, to the best of “Seller’s Actual Knowledge” (as herein defined in this Section) as of the following are Effective Date:
(a) Seller has received no written notice, not subsequently cured, from any governmental entity citing Seller for any violation of any law, ordinance, order, or regulation which is applicable to the present use and occupancy of the Property;
(b) the list of Tenant Leases attached hereto and incorporated herein as Schedule 2 to Exhibit B is true and correct as of the date specified thereon (to be updated as of this Agreement the Closing Date), such list containing the identification of each space in the Property, and will be for each such space, the name of the tenant, the expiration date of the Tenant Lease, the date to which rent has been collected under each Tenant Lease as of December 1, 2006, and as of the first day of the month prior to the Closing Date, and all modifications of such Tenant Lease and supplements thereto;
(c) in connection with Tenant Leases: (i) Seller has received no written notice or claim from any tenant alleging that Seller has defaulted in performing any of its obligations under any of the Tenant Leases that has not been cured or otherwise resolved; (ii) no material defaults exist under any of the Tenant Leases on the part of the tenant thereto;
(d) No litigation, arbitration, or other judicial, administrative, or other similar proceedings involving, related to, or arising out of the Property are currently pending or threatened in writing, which would have a material impact on Buyer’s ownership or operation of the Property;
(e) the list of Service Contracts attached hereto and incorporated herein as Schedule 2 to Exhibit K is true and correct as of the date of Closing:
specified thereon (a) Seller is duly organized and in good standing under the laws of the State of Minnesota; duly qualified to transact business in the State of Minnesota. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the documents, instruments and agreements to be executed and/or delivered by Seller pursuant to this Agreement have been or will be on or before the date of Closing duly and validly authorized, executed and delivered by Seller and the obligations of Seller hereunder and thereunder are or will be upon such execution or delivery valid, legally binding, and enforceable against 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) There are no condemnation proceedings pending or, to Seller's knowledge, threatened updated as of the date Closing Date), Seller has received no written notice or claim from any party thereto alleging that Seller has defaulted in performing any of this Agreement its obligations under any of the Service Contracts or Long-Term Service Contract(s) which Buyer is required to assume, that has not been cured or otherwise resolved;
(f) Seller has received no written notice from any governmental agency of any actual or potential condemnation of the Property or any part thereof;
(g) Seller has received no written notice from any governmental agency with respect to all or any part of Hazardous Material contamination on the Real Property.
(e) Except as otherwise described in Exhibit G attached hereto, no major or structural repairs have been performed, or with respect to the best of Seller's knowledgeany investigation, without inquiryadministrative order, have been necessaryconsent order or agreement, litigation, or settlement with respect to Hazardous Material or Hazardous Material contamination that is in existence with respect to the improvements on Property. As used herein, “Hazardous Material” means any hazardous, toxic or dangerous waste, substance, or material, as currently defined for purposes of the Real Property during the two (2) years immediately preceding the date hereof. The physical condition Comprehensive Environmental Response, Compensation and Liability Act of such improvements on the Closing Date will not differ 1980, as amended; asbestos in any material adverse respect from the condition of such improvements on the date of this Agreement.
(f) Mechanic's Liens. All labor form or condition; polychlorinated biphenyl’s; and materials which have been provided any other material, substance or waste defined in or regulated under any other federal, state, or local law, ordinance, rule, or regulation, applicable to the Property have been fully paid for Property, and establishing liability standards or will be fully paid forrequired action as to reporting, discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal, removal, use, or will be fully paid forexistence of a hazardous, prior to the Closing Date.toxic, or dangerous waste, substance, or material;
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (NTS Realty Holdings Lp)