A REASONABLE OPPORTUNITY TO PARTICIPATE IN
ANY DISCUSSIONS OR NEGOTIATIONS, WRITTEN OR ORAL, WITH EACH LESSOR UNDER EACH
LEASE IN CONNECTION WITH OBTAINING CONSENT THEREUNDER.
2.9
NATURAL HAZARD DISCLOSURE STATEMENT.
PROMPTLY FOLLOWING EXECUTION OF THIS AGREEMENT, SELLER SHALL DELIVER TO
PURCHASER A NATURAL HAZARD DISCLOSURE STATEMENT EXECUTED BY SELLER AS AND TO THE
EXTENT PRESCRIBED BY CALIFORNIA LAW, IN THE FORM ATTACHED AS EXHIBIT B (THE
"NHDS"), APPLICABLE TO THE REAL PROPERTY.
WITHIN SEVEN (7) BUSINESS DAYS AFTER
PURCHASER'S RECEIPT OF THE NHDS, PURCHASER SHALL EXECUTE AND DELIVER TO SELLER
ONE COUNTERPART ORIGINAL OF THE NHDS.
PURCHASER'S SIGNATURE ON THE NHDS SHALL,
AMONG OTHER THINGS, SERVE TO ACKNOWLEDGE PURCHASER'S RECEIPT FROM SELLER OF THE
NHDS AND PURCHASER'S UNDERSTANDING AND ACCEPTANCE THEREOF.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Kerr and Purchaser to enter into this Agreement and to
consummate the Acquisition, Seller represents and warrants to Kerr and Purchaser
as follows:
3.1
ORGANIZATION AND QUALIFICATION.
SELLER IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF CALIFORNIA AND HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY
TO OWN, LEASE AND OPERATE ITS ASSETS AND PROPERTIES AND TO CARRY ON THE BUSINESS
AS IT IS NOW BEING CONDUCTED.
SELLER IS DULY QUALIFIED OR LICENSED TO DO
BUSINESS, AND IS IN GOOD STANDING, IN EACH JURISDICTION WHERE THE CHARACTER OF
THE ASSETS AND PROPERTIES OWNED, LEASED OR OPERATED BY IT OR THE NATURE OF THE
BUSINESS MAKES SUCH QUALIFICATION OR LICENSING NECESSARY, EXCEPT FOR FAILURES TO
BE SO QUALIFIED OR LICENSED AND IN GOOD STANDING THAT DO NOT HAVE A MATERIAL
ADVERSE EFFECT.
EXCEPT AS SET FORTH ON SCHEDULE 3.1, SELLER HAS NO
SUBSIDIARIES.
*
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS
DOCUMENT PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT SENT TO THE SEC.
SUCH PORTIONS ARE OMITTED FROM THIS FILING AND FILED SEPARATELY WITH THE SEC.
17
3.2
AUTHORITY RELATIVE TO THIS AGREEMENT.
SELLER HAS ALL NECESSARY CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, TO
PERFORM ITS OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE ACQUISITION.
THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND SUCH OTHER TRANSACTION DOCUMENTS BY
SELLER AND THE CONSUMMATION BY SELLER OF THE ACQUISITION HAVE BEEN DULY AND
VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF SELLER, AND
NO OTHER CORPORATE PROCEEDINGS ON THE PART OF SELLER ARE NECESSARY TO AUTHORIZE
THIS AGREEMENT OR TO CONSUMMATE THE ACQUISITION.
THIS AGREEMENT AND SUCH OTHER
TRANSACTION DOCUMENTS HAVE BEEN OR WILL BE DULY EXECUTED AND DELIVERED BY SELLER
AND, ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY BY PURCHASER, EACH
SUCH AGREEMENT CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, SUBJECT TO THE EFFECT
OF ANY APPLICABLE BANKRUPTCY, MORATORIUM, INSOLVENCY, FRAUDULENT CONVEYANCE,
REORGANIZATION OR OTHER SIMILAR LAW AFFECTING THE ENFORCEABILITY OF CREDITORS'
RIGHTS GENERALLY AND TO THE EFFECT OF GENERAL